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OF  CALIFORNIA 

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A 


COMMENTARY 


Mining  Legislation  of  Congress 


A  PRELIMINARY  REVIEW  OF  THE  REPEALED  SECTIONS 
OF  THE  MINING  ACT  OF  1866, 

THE  WHOLE  CONSTITUTING  A  COMPLETE  STATEMENT  OF  THE 


LAW  AND   PRACTICE    RELATIVE  TO  MINES,   MINING,   AND   MIN- 
ERAL LANDS,  UNDER  UNITED  STATES  LAWS,  AS  CONSTRUED 
BY  THE  GENERAL  LAND  OFFICE,  THE  SECRETARY 
OF  THE  INTERIOR,  AND  THE  COURTS  FROM 
186G  TO  THE  PRESENT  TIME. 


BY 


EDWARD  P.   WEEKS, 

Counsellor  at  Law. 


SAN  FRANCISCO: 

SUMKEB  WHITKEY  &  CO. 

1877. 


I04(S5i 


COPYEIGHT  1877, 

By  EDWARD  P.  WEEKS. 


s 


PEEFACE. 


The  following  pages  are  the  result  of  an  attempt  to  systema- 
tize and  condense  the  materials  which  constitute  the  law  rela- 
tive to  the  Mineral  Lands  of  the  United  States,  from  the  date 
of  the  first  Mining  Act,  in  1866,  to  the  present  time.  Those 
materials  consist,  in  the  main,  of  the  various  acts  of  Congress 
and  the  Revised  Mining  Statutes  of  the  United  States,  the  de- 
cisions and  instructions  of  the  Commissioner  of  the  General 
Land  Office  and. the  Secretary  of  the  Interior,  the  opinions  of 
the  United  States  Attorneys-General,  and  the  decisions  of  the 
Courts,  so  far  as  the  Mining  Acts  have  been  the  subjects  of 
judicial  construction.  The  cases  in  the  regular  reports  relative 
to  these  acts  have  not  hitherto  been  numerous,  but  they  have 
been  of  great  importance,  and  have  affected  interests  of  large 
pecuniary  value. 

The  subject  of  the  binding  effect  and  the  value  as  authority 
of  the  decisions  of  the  Land  Department  has  been  discussed  in 
its  legal  aspect  in  a  chapter  in  the  body  of  the  work.  It  is  suf- 
ficient to  say,  here,  that  they  are  the  decisions  of  that  Depart- 
ment, and  of  that  branch  of  the  executive  portion  of  the  Gov- 
ernment, to  which  Congress  has  left  the  practical  administration 
of  the  laws  relative  to  the  mineral  lands  of  the  nation.  In  that 
Department,  at  least,  they  are  the  law.  There,  they  are  of  ac- 
knowledged force  and  authority.  Under  them  the  miner  must 
proceed  when  he  is  in  quest  of  the  Government  title  to  his 
mine;  and  a  departure  from  them,  or  a  want  of  attention  to 
them,  may  completely  invalidate  his  entire  proceedings,  or  im- 
peril his  title.  This  is  deemed  sufficient  to  demonstrate  their 
practical  importance.  It  is  enough  to  show  that  attorneys  and 
clients  interested  in  any  way  in  mineral  lands  should  be  familiar 
with  these  decisions,  and,  being  thus  acquainted  with  them, 
should  follow  them.  They  have,  therefore,  been  admitted 
among;  the  materials  which  form  the  basis  of  this  work. 


o6Vc8± 


VI  PREFACE. 

The  plan  pursued  has  been  to  take  a  section,  or,  when  upon 
the  same  topic,  a  group  of  sections,  of  the  United  States  Re- 
vised Statutes  relative  to  the  subject-matter,  and,  using  it  as 
a  text  for  a  chapter,  follow  with  a  commentary  upon  that  par- 
ticular branch  of  the  statutory  law.  The  order  pursued  is  the 
one  adopted  in  the  Revised  Statutes  themselves.  If  not  the 
most  logical  order  that  could  have  been  devised,  it  has  been 
thought  that  it  is  the  order  in  which  the  practitioner,  already 
familiar  with  it  in  the  statutes,  will  naturally  look  for,  and 
expect  to  find  pursued,  in  the  commentary.  This  considera- 
tion— one  addressed  to  the  convenience  of  the  practitioner — 
has  outweighed  other  considerations  in  the  author's  mind.  Nor 
is  the  arrangement  sufficiently  illogical  to  call  loudly  for  a  dis- 
turbance of  the  statutory  secpience  of  the  sections. 

The  book  commences  with  an  introductory  chapter  relative 
to  the  first  Act,  that  of  1866,  in  which  Congress  undertook  to 
regulate  mines  and  mining,  and  provide  for  the  sale  of  mineral 
lands.  The  commentary  in  this  chapter  is  especially  directed 
to  a  consideration  of  the  repealed  sections  of  that  Act,  both 
with  a  view  to  illustrate  the  changes  which  have  taken  place, 
and  also  as  of  value  in  questions  of  rights  vested  under  them 
before  their  repeal.  This  is  followed  by  a  chapter  on  Reserva- 
tions and  Exceptions  of  Mineral  Lands  in  Grants  by  the  Gov- 
ern ment,  with  a  review  of  the  policy  of  Congress  in  reserving 
mineral  Lands  from  pre-emption,  sale,  and  entry.  Chapter  three 
treat-  of  the  Rights  of  Exploration  and  Purchase  of  Valuable 
Mineral  Deposits,  and  the  Occupation  and  Purchase  of  Mineral 
Lands,  together  with  the  Citizenship  required,  and  the  Proof 
thereof.  ( !hapters  tour,  five,  six,  and  seven  treat  of  the  Dimen- 
sions of  Claims  and  Locations  upon  Veins  or  Lodes;  the  Loca- 
tor'- Right  of  Possession  and  Enjoyment  of  the  Surface-ground, 
and  of  tlie  Lode,  Tunnel  Rights,  Regulations  and  Customs, 
Expenditures  and  Improvements,  Surveys  and  Boundaries  of 
Claims.     Chapter  eight  is  devoted  to  the  important  subject  of 

Patents  tO  Mineral  Lands,  and  the  mode  of  procuring  Govern- 
ment Title  to  Mine-  :   and  chapter  nine  to  Adverse  Claims  to  the 

Lands  applied  for  by  the  Claimants  to  these  Patents,  and  the 
subsequent  proceeding  in  the  Courts  after  those  adverse  claims 
have  been  filed.  <  Chapter  ten  covers  the  subject  of  I'lacer  Claims. 


PREFACE.  vil 

their  Survey,  Entry,  and  Patenting,  their  Dimensions  and  the 
Subdivision  of  the  Land  into  Ten-acre  Tracts,  together  with 
the  requisite  Evidence  of  Possession.  Chapter  eleven  is  upon 
the  subject  of  Surveys  of  Mineral  Lands  and  the  Duties  of  the 
Surveyor-General.  Chapter  twelve  treats  of  the  Intersection 
of  Veins  ;  chapter  thirteen,  of  Mill-sites  and  Patents  to  non- 
mineral  Lands  ;  and  chapter  fourteen,  of  Water  and  other  Vested 
Rights,  the  Right  of  Way  for  Canals  and  Ditches,  Easements, 
Drainage,  State  and  Territorial  Legislation,  and  the  Sutro  Tun- 
nel Act.  Chapter  fifteen  embraces  the  subject  of  Homesteads 
and  Town-sites.  Chapter  sixteen  treats  of  the  Segregation  of 
Mineral  and  Agricultural  Lands,  and  Withdrawal  of  Mineral 
Lands  from  Agricultural  Entry.  Chapter  seventeen  is  an  Ab- 
stract of  the  Law  as  to  Coal  Lands ;  and  chapter  eighteen  in- 
cludes the  consideration  of  various  miscellaneous  topics,  such 
as  the  General  Power  and  Authority  of  the  Land  Department, 
Hearings  in  Contested  Cases,  Appeals,  Evidence,  etc.,  etc. 

The  subject  is  one  of  recent  growth  and  development.  New, 
and  perhaps  perplexing  questions,  must  inevitably  arise.  The 
author  has  confined  himself  to  a  statement,  as  accurate  and 
clear  as  possible,  of  what  the  law  is  at  the  date  of  writing. 
The  domain  of  speculation  as  to  what  it  will  be  in  future  has 
been  carefully  avoided.  If  there  were  any  temptations  to  tres- 
pass upon  such  a  territory,  the  inclination  would  certainly  be 
restrained,  if  not  extinguished,  in  reflecting  on  the  diametrical 
difference  of  opinion  existing  between  one  of  the  most  learned 
of  the  State  Supreme  Courts,  and  the  Supreme  Court  of  the 
United  States,  upon  questions  of  pre-eminent  gravity,  in  regard 
to  the  Land  Laws  of  the  United  States  Government.  When  a 
State  Court  of  acknowledged  ability,  and  of  highest  resort  in 
the  State,  has  been  frequently  and  recently  reversed  by  the 
highest  tribunal  in  the  country  upon  such  topics,  a  writer  may 
well  be  deterred  from  anything  more  than  a  bare  statement  of 
the  law  as  already  construed,  and  will  certainly  not  be  expected 
to  express  any  opinion  as  to  what  future  adjudications  may  be. 
"  Ita  lex  scripta  est,"  is  sufficient.  Whether  the  law  will  in 
future  be  written  in  any  other  way,  is  not  within  the  scope  of 
this  book. 

Sacramento,  June,  1877. 


Table  of  Parallel  Eeference, 


Acts  of  1866,  1870  and  1872. 

Act  of  July  26th,  1866,  14  U.  S.  Stats. 

252: 

Revised 
Statute*. 

Sec.    1 Sec.  2319 

Sec.    2 Sec.  2325 

Sec.    3 Sec.  2325 

Sec.    4 Sec.  2320 

Sec.    5 Sec.  2338 

Sec.    6 Sec.  2326 

Sec.    7 Sec.  2343 

Sec.    8 Sec.  2344 

Sec.    9 Sec.  2339 

•       Sec.  10 Sec  2341 

Sec.  11 Sec.  2342 

Act  of  July  9th,  1870,  10  U.  S.  Stats. 
218: 

Sec.  12 Sec.  2330 

Sec.  13 Sec.  21  >32 

Sec.  14 Sec.  2335 

Sec.  15 Sec.  2338 

Sec.  16 Sec.  2331 

Sec.  17 Sec.  2340 

Act  of  May  10th,  1872,  17  U.  S.  Stats. 
91: 

Sec.    1 Sec.  2319 

Sec.    2 Sec.  2320 

3 Sec.  2322 

Sec.    4 Sec  2323 

&  a.    5 Sec  2324 

Bee.    <; Sec.  2325 

Sec.    7 Sec.  2326 

C.     K Sec.  2327 

Bee.    9 Sec.  2328 

Bi  c.  l<> Sec.  2331 

Sec.   II Sec.  233:! 

12 Sec.  2331 

L3    Sec.  2335 

1 1 Sec.  2336 

Bee.  US Sec.  2337 

BeC.    16 Sec.  2311 


Revised  Statutes. 

Sec.  2319.  .Sec.  1,  Act  of  1866,  and  Sec. 

1,  Act  of  1872. 

Sec.  2320.  .Sec.  4,  Act  of  1866,  and  Sec. 

2,  Act  of  1872. 
Sec.  2322.  .Sec.  3,  Act  of  1872. 
Sec.  2323.  .Sec.  4,  Act  of  1872. 
Sec.  2324.  .Sec.  5,  Act  of  1872. 

Sec.  2325.  .Sees.  2,  3,  Act  of  I860,  and 
Sec.  6,  Act  of  1872. 

Sec.  2326.  .Sec.  6,  Act  of  1866,  and  Sec. 
7,  Act  of  1872. 

Sec.  2327.  .Sec.  8,  Act  of  1872. 

Sec.  2328.  .Sec.  9,  Act  of  1872. 

Sec.  2330.  .Sec.  12,  Act  of  1870. 

Sec.  2331  .Sec.  16,  Act  of  1870,  and  Sec. 
10,  Act  of  1872. 

Sec,  2332.  .Sec.  13,  Act  of  1870. 

Sec.  2333.  .Sec.  11,  Act  of  1872. 

Sec.  2334.  .Sec.  12,  Act  of  1872. 

Sec.  2335.  .Sec.  13,  Act  of  1872,  and  Sec. 

14,  Act  of  1870. 
Sec.  2336  .Sec.  14,  Act  of  1872. 
Sec.  2337.  .Sec.  15,  Act  of  1872. 

Sec.  2338.  .Sec.  5,  Act  of  1866,  and  Sec. 

15,  Act  of  1870. 
Sec.  2339.  .Sec.  9,  Act  of  1866. 
Sec.  2340.  .Sec.  17,  Act  of  1870. 
Sec.  2341.  .Sec.  10,  Act  of  1866. 
Sec.  2342.  .Sec.  11,  Act  of  1866. 
Sec.  234:;.  .Sec.  7,  A.  t  of  1866. 

Sec.  2344.  Sec.  8,  Act  of  1866,  and  Sec. 

16,  Act  of  1872. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTORY— THE  FIRST  MINING  ACT. 

§  1.  The  Act  of  18G6— The  repealed  sections. 

§  2.  Section  one — License  without  title. 

§  3.  Duties  of  registers  and  receivers. 

§  4.  Title  and  patent — The  second  section. 

§  5.  Limitation  of  the  right  to  obtain  patents. 

§  6.  Applications  for  patents. 

§  7.  Citizenship  required. 

§  8.  Entry  and  diagram. 

§  9.  Defects  in  the  Instructions. 

§  10.  The  application. 

§  11.  Publication  of  the  notice. 

§  12.  Duties  of  claimants,  registers,  and  receivers. 

§  13.  What  a  patent  conveyed. 

§  14.  Diagram,  notice,  survey,  and  patent. 

§  15.  Survey. 

§  16.  Posting  the  notice  of  application. 

§  17.  Effect  of  irregularities — Notice  of  application — Requisites. 

§  18.  Fees  of  surveyors. 

§  19.  Size  of  locations — Adjustment  of  surveys. 

§  20.  Duties  of  deputy-surveyors. 

§  21.  Following  the  vein  to  any  depth. 

§  22.  Mode  of  survey— Quantity  and  restriction  to  one  claim. 

§  23.  Deviation  from  the  rectangular  form  of  survey. 

§  24.  Number  of  feet  located. 

§  25.  Adverse  claims  and  contests. 

§  26.  Proceedings  on  adverse  claims. 

§  27.  Miscellaneous. 


CHAPTER  n. 

RESERVATIONS  AND  EXCEPTIONS  OF  MINERAL  LANDS  IN  GRANTS 
BY  THE  GOVERNMENT. 

§  28.    Mineral  lands  reserved. 

§  29.    Mineral  lands  in  certain  States  not  excepted. 

§  30.    Exception  from  certain  grants. 

ix 


X  TABLE   OF    CONTENTS. 

§  31.  The  policy  of  the  Government  in  reserving  or  excepting  mineral  lands. 

§  32.  Excepting  clause  in  placer  and  agricultural  patents. 

§  33.  Saline  lands. 

§  34.  School  lands  containing  mineral. 

§  35.  School  lands  in  Nevada. 

§  36.  Mineral  lands  in  railroad  grants. 


CHAPTER  III. 

EIGHT  OF  EXPLORATION  AND  PURCHASE  OF  VALUABLE  MIN- 
ERAL DEPOSITS,  AND  THE  OCCUPATION  AND  PURCHASE  OF 
MINERAL  LANDS— CITIZENSHIP  AND  PROOF  THEREOF. 

§  37.  Right  to  purchase. 

§  38.  Valuable  deposits. 

§  39.  The  general  rule  stated. 

§  40.  Borax  deposits. 

§  41.  Mineral  deposits. 

§  42.  What  is  a  mineral  vein  ? 

§  43.  Mineral  veins,  classifications. 

§  44.  Definitions  of  terms  in  common  use. 

§  45.  "Who  may  acquire  patents. 

§  46.  Application  by  aliens. 

§  47.  Citizenship. 

§  48.  Proof  of  citizenship. 

§  49.  Affidavit  of  citizenship. 

§  50.  Foreign  corporation. 

§  51.  Restriction  as  to  proof. 


CHAPTER  IV. 

DIMENSIONS  OF  CLAIMS  AND  LOCATIONS  UPON  VEINS  OR  LODES. 

§  52.  Length  and  width  of  lode-claims. 

§  53.  Veins  or  lodes  of  quartz  or  other  rock  in  place. 

§  54.  Location  previous  to  t  lie  Mining  Acts. 

J  :,:,.  Width  of  Lode-claims— Rights  granted  by  the  patent. 

Burvey  must  conform  to  the  patent. 

§  57.  Manner  of  locating  prior  to  1872. 

§  58.  Several  locations  may  be  made. 

§  59.  Local  regulations. 

CHAPTER   V. 

LOCATOR'S    RIGHTS   OF    POSSESSION    AND    ENJOYMENT   OF    THE 
SURFACE  GROUND   AND  OF  THE  LODE. 


LocatOI  B  rights  Of  possession  and  enjoyment. 
§    61.      Stains  of   |i><|e-clailllS  previously   located. 

§  62.    I'ateni  i  [or  vans  or  lodea  previously  issued. 
§  63.    Priority  of  location-  Importance  of . 


TABLE    OF    CONTENTS. 

CHAPTER  VI. 

TUNNEL  BIGHTS. 


64.  Owners  of  tunnel  rights. 

65.  Patenting  tunnel  rights. 

66.  Expenditures  upon  tunnel. 


CHAPTER   VII. 

KEGULATIONS   AND    CUSTOMS  —  EXPENDITURES    AND    IMPROVE- 
MENTS—SURVEYS AND  BOUNDARIES. 

§  67.  Regulations  and  customs. 

§  68.  Definition  of  "claim." 

§  69.  Annual  expenditures  on  placer-claims. 

§  70.  Annual  expenditures  on  lode-claims. 

$  71.  Neglect  of  co-claimants  to  contribute. 

§  72.  Re-located  mines — expenditure. 

§  73.  Amount  of  expenditure  shown  upon  plat  and  field-notes. 

§  74.  Location  and  survey — Boundaries. 

§  75.  Certificate  as  to  improvements. 

§  76.  Fixed  monuments — Courses — Distances. 


CHAPTER   VIII. 

PATENTS  TO    MINERAL  LANDS— MODE    OF*  PROCURING    GOVERN- 
MENT TITLE. 

§  77.  Patents  for  vein  or  lode-claims,  how  obtained. 

§  78.  Details  of  procedure. 

§  79.  Duties  of  registers  and  receivers. 

§  80.  Nature  of  the  patent. 

§  81.  Impeachment  of  patent. 

§  82.  Adverse  possession  as  against  a  patent. 

§  83.  What  is  granted. 

§  84.  Who  may  apply. 

§  85.  Evidence  of    ownership  —  Deraigning   title  —  Identity  of    applicant  — 

Transfers. 

§  86.  Claim  through  an  executor — Where  an  alien  is  grantee  of  a  claim. 

§  87.  United  applications — Unincorporated  associations. 

§  88.  Several  claims  cannot  be  embraced  in  one  application. 

§  89.  Grantee  of  several  locators  may  obtain  patent  for  the  whole  tract. 

§  90.  Conflicting  patents. 

§  91.  Errors  in  description  in  patent — Relinquishment — Calls  for  the  relin- 

quishment  of  land  inadvertently  iiatented. 

§  92.  Second  patent — Entries  of  mineral  lands  by  settlers  and  corporations. 

§  93.  Minerals  discovered  after  agricultural  patent. 

§  94.  Setting  aside  patent. 


Xll  TABLE    OF    CONTEXTS. 

Number  of  patents. 

Protests  against  issuance  of  patents — Status  of  protestants. 

An  illegal  location  invalidates  subsequent  proceedings. 

Location  by  a  minor. 

Application  for  several  lodes  and  a  mill-site — Claim  partly  in  one  dis- 
trict and  partly  in  another. 

Delaying  action  at  request  of  Congressional  Committees. 

The  affidavit — Proper  party  to  make  it. 

Verification  of  affidavits. 

The  location  notice. 

Parol  evidence  to  aid  the  notice. 

Plat  must  show  the  boundaries  of  the  claim. 

Surveys  to  show  exterior  boundaries?. 

Specific  surface  ground. 

Posting  on  claim,  and  proof  thereof. 

Publication  of  the  notice. 

Time  of  publication. 

Counting  the  sixty  days- 
Proof  of  publication. 

The  newspaper  in  which  the  notice  is  to  be  published. 

Defects  in  the  published  notice. 

Discrepancies  between  final  survey  and  patent  and  the  application  and 
published  notice. 

Discrepancies  between  the  published  notice  and  the  notice  and  diagram 
filed. 

Discrepancies  between  the  published  notice  and  the  diagram  and  posted 
notice. 

Discrepancies  between  the  final  survey  and  patent  and  the  application. 

New  survey,  pending  another  application. 

Discrepancies  between  survey  and  diagram. 

I  liscrepancies  between  survey  and  notice,  matter  of  description. 

Errors  in  survey. 

When  application  will  be  rejected. 

Sworn  statement. 

Approval  of  survey — Jurisdiction  of  Surveyor-General. 

Proof  of  citizenship. 
Miscellaneous. 

CHAPTER  IX. 

ADVERSE  CLAIMS— PROCEEDINGS  IN  COURT. 

Adverse  claims. 

Advei  i  claims  under  Act  of  1866. 

Adv< ;rs<!  claims  under  stiitiil.es  now  in  force— details  of  procedure. 

Who  may  file. 

Vei  Lfication  of  adverse  claim. 

Verification  of  ad\  erse  claims  by  agents  of  companies. 

'I  Ime  of  filing. 

Commencing  second  suil     Dismissal  of  former  suit, 

What  const  it  iit.es  an  adverse  claim. 

Ni-i ■!• , jary  allegal inns. 

What  adversi  claimant  muBt  show 


§ 

95. 

§ 

96. 

§ 

97. 

§ 

98. 

§ 

99. 

§ 

100. 

§ 

101. 

§ 

102. 

§ 

103. 

§ 

104, 

§ 

105. 

§ 

106. 

§ 

107. 

§ 

108. 

§ 

109. 

§ 

110. 

§ 

111. 

5 

112. 

0 

113. 

§ 

114, 

§ 

115. 

§ 

116. 

§ 

117. 

§ 

118. 

§ 

119. 

§ 

120. 

5 

121. 

§ 

122. 

;; 

123. 

§ 

124. 

s 

J  2.".. 

§ 

126. 

§ 

127. 

5 

128. 

. 

129. 

L30. 

5 

L31 

132. 

! 

! 

i.;i. 

-.; 

■ 

136. 

! 

137. 

: 

138. 

TABLE    OF    CONTEXTS.  XU1 

§  139.  Form  of  adverse  claim. 

§   140.  Prima  facie  adverse  claim. 

§  141.  Sufficient  riling. 

§  142.  Adverse  claim  must  be  accompanied  by  certified  survey. 

§   143.  The  object  of  giving  notice  by  publication. 

§  144.  Jurisdiction  of  the  Land  Office  over  adverse  claims. 

§  145.  Notice  of  suit. 

§   146.  Authority  of  register  to  dismiss. 

§  147.  Proceedings  in  Court — proper  party  to  commence  suit. 

§   148.  Possession  as  equivalent  to  adverse  claim — parties  to  institute  suit. 

§  149.  What  are  Courts  of  competent  jurisdiction. 

§  150.  Contests  in  Court — Jurisdiction. 

§   151.  Jurisdiction  of  State  Courts. 

§  152.  Transfer  of   causes  to  United  States  Courts  — Jurisdiction  of  mining 

causes. 

§  153.  Cancelation  of  entry  pending  suit. 

§  154.  Stay  of  proceedings. 

§  155.  Filing  consent  to  judgment. 

§  156.  Laches  in  bringing  suit. 

§  157.  Prosecution  of  suits — reasonable  diligence. 

§  158.  Abandonment  of  portion  of  adverse  claim. 

§  159.  Abandonment  of  surface  ground. 

§  160.  Cross-applications — delay. 

§  161.  Fees  on  filing  adverse  claim. 

§  162.  Miscellaneous. 


.  CHAPTER  X. 

PLACER  CLAIMS— SURVEY,  ENTRY,  AND  PATENT— DIMENSIONS  OF 
CLAIMS— SUBDIVISIONS  OF  TEN-ACRE  TRACTS— EVIDENCE  OF 
POSSESSION— MODE  OF  OBTAINING  PATENT. 

§  163.  Conformity  of  placer  claims  to  surveys — Limits  and  boundaries. 

§  164.  Subdivision  of  ten-acre  tracts— Extent  of  placer  locations. 

§  165.  Survey  of  placer  claims — Limitations. 

§  166.  Evidence  of  possession — Sufficient  to  establish  right  to  patent. 

§  167.  Proceedings  for  patent  for  placer  claims. 

§   168.  Details  of  procedure. 

§   169.  Description  in  the  notice. 

§   170.  Entry  and  survey  of  placer  claims  under  the  Act  of  1866. 

§  171.  Survey  of  placer  claims  under  the  Acts  of  18(36, 1870. 

§   172.  Survey  and  entry  under  the  Act  of  1870. 

§  173.  Quantity  of  placer  ground  subject  to  location. 

§   174.  Proofs  necessary  to  establish  possessory  rights. 

§  175.  Placer  ground  located  after  May  10th,  1872. 

§   176.  Conflicting  claims — Placer  and  lode  claims. 

§  177.  Miscellaneous  provisions. 


Xiv  TABLE    OF    CONTENTS. 


CHAPTER   XI. 

PUBLIC  SURVEYS  OVER  MINERAL  LANDS— SURVEYS  OF  MINING 
CLAIMS— DUTIES  OF  SURVEYOR-GENERAL— APPOINTMENT  OF 
DEPUTIES. 

§  178.  Appointment  of  surveyors  of  mining  claims  by  Surveyor-General. 

§  179.  Public  surveys  extended  over  mineral  lands. 

§  180.  Description  of  vein  claims  on  surveyed  and  unsurveyed  lands. 

§  181.  Appointment  of  deputies. 

§   182.  Charges  for  surveys  and  publications. 

§  1S3.  Special  instructions  to  deputies. 

§  184.  Authority  of  deputies  outside  the  district. 


CHAPTER  XH. 

INTERSECTION  OF  VEINS. 

§  185.  Intersection  of  veins. 

§  186.  Conflicts  as  to  surface  ground. 

§  187.  Identity  of  lodes. 

§  188.  Interference  of  claims. 

§  189.  Abandonment  of  surface  ground. 

CHAPTER  Xm. 

MILL  SITES— PATENTS  FOR  NON-MINERAL  LANDS. 

§  190.  Patents  for  non-mineral  lands. 

§  191.  Location  of  mill  sites. 

§  192.  Procuring  patent. 

§  193.  A  mill  .site  must  be  non-mineral  in  character. 

§  194.  Improvements. 

§  195.  Mill  sites  in  railroad  grants. 

CHAPTER  XIV. 

WATER  AND  OTHER  VESTED  RIGHTS— RIGHT  OF  WAY  FOR  CA- 
NALS ANI>  DITCHES  —  EASEMENTS—  DRAINAGE  —  STATE  AND 
TEBBITORIAL  LEGISLATION—  PATENTS  SUBJECT  TO  VESTED 
RIGHTS— SUTEO  TUNNEL  ACT. 

i,  State  and  Territorial  legislation — Easements— Drainage,  etc. 

§  197.  Conditions  inserted  in  the  patent. 

J    198,  Vested  rights  to  use  of  water— Bight  of  way  for  canals. 

§  199.  Patents  subjecl  to  vested  water  rights. 

\  200  i' >  ■  ••■■  atei  rights  confirmed. 

J  201  Lot  al  v.. iter  rights  protected. 


TABLE    OF    CONTENTS.  XV 

§  202.  Conditions  as  to  vested  water  rights  inserted  in  patent. 

§  203.  Mining  ditch  in  railroad  grant. 

§  204.  Conflicting  rights  of  ditch-owners  and  miners. 

§  205.  Exercise  of  eminent  domain  for  a  private  ditch  company's  use. 

§  200.  Water  rights  in  California  under  the  Codes. 

§  207.  Existing  water  rights  obtained  by  patent,  how  affected. 

§  208.  Effect  of  the  acts  upon  previous  diversion  of  water  upon  patented  lands. 

§  209.  Recognition  of  the  doctrine  of  prior  appropriation. 

§  210.  Effect  of  the  statute  upon  prior  appropriation  without  Government  title. 

§  211.  Construction  of  flumes  over  public  lands. 

§  212.  Rights  of  ditch-owners  on  public  lands. 

§  213.  Sutro  Tunnel  Act. 

§  214.  Conditions  inserted  in  patents  for  mines  on  Comstock  Lode,  Nevada. 

§  215.  Claim  rejected. 

CHAPTER  XV. 

HOMESTEADS  AND  TOWN  SITES  —  HOMESTEAD    RIGHTS  ON  NON- 
MINERAL  LANDS— TOWN-SITE  ENTRIES. 

§  216.  Non-mineral  lands  open  to  homesteads. 

§  217.  Pre-emption  of  homesteads  on  agricultural  lands  formerly  designated 

as  mineral. 

§  218.  Homestead  entries  including  mineral  deposits. 

§  219.  Rights  of  pre-emptioners  and  homestead  claimants. 

§  220.  Conflicts  between  homestead  and  mill-site  claimants. 

§  221.  Title  to  town  lots  subject  to  mineral  rights. 

§  222.  Conflicts  between  mineral  and  town-site  claimants. 


CHAPTER  XVI. 

SEGREGATION     OF     MINERAL     AND     AGRICULTURAL     LANDS 
WITHDRAWAL    FROM    AGRICULTURAL    ENTRY. 

§  223.  Manner  of  setting  apart  mineral  lands  as  agricultural. 

§  224.  Segregation  of  agricultural  from  mineral  lands. 

§  225.  Mineral  affidavits. 

§  226.  Mineral  affidavits  on  timber  land. 

§  227.  Segregation  under  Acts  of  1866  and  1870. 

§  228.  Withdrawal  of  certain  lands  from  agricultural  entry. 

§  229.  Surveyors'  returns. 

§  230.  Their  prima  facie  accuracy. 

§  231.  Hearings  to  determine  the  character  of  land — Publication. 

§  232.  What  is  mineral  land. 

§  233.  Burden  of  proof. 

§  234.  Evidence  as  to  agricultural  character  of  land. 

§  235.  The  testimony. 

§  230.  Proof  as  to  mineral  character  of  land. 

§  237,  Discovery  of  mines  on  agricultural  lands. 

§  238.  Agricultural  patent  covering  mines  already  worked. 

§  239.  Fraud  in  pre-emption  entry. 

§  240.  Compromises  between  miners  and  settlers. 


XVI  TABLE    OF    CONTENTS. 

§  241.     Attempt  by  railroad  to  disprove  mineral  character  of  lands. 
§  242.    Non-mineral  proof  by  settlers  on  lands  within  railroad  limits. 


CHAPTER  XVII. 

COAL  LANDS  — EIGHT  OF  ENTRY  AND  OF  PRE-EMPTION  —  PRES- 
ENTATION OF  CLAIMS— LIMITATION  OF  ENTRY— CONFLICTING 
CLAIMS— EXISTING  EIGHTS. 

§  243.  Entry  of  coal  lands. 

§  244.  Pre-emption  of  coal  lands. 

§  245.  "When  claims  are  to  be  presented. 

§  24G.  Only  one  entry  allowed. 

§  247.  Conflicting  claims. 

§  248.  Existing  rights. 

§  249.  Departmental  regulations  and  instructions. 

§  250.  Restrictions  as  to  purchase. 

§  251.  School  sections  containing  coal. 

§  252.  Coal  lands  and  town  sites. 

§  253.  Actual  possession  of  coal  mines  upon  railroad  sections. 

§  254.  Coal  lands  in  Minnesota,  Wisconsin,  and  Michigan. 


CHAPTER  XVIII. 

MISCELLANEOUS  PROVISIONS. 

§  255.  Power  of  the  President  as  to  appointments. 

§  256.  Pending  applications — Existing  rights. 

§  257.  Possessory  actions  relative  to  mines. 

§  258.  Practice  before  the  Land  Department— Hearings,  contests,  and  appeals 

Witnesses  and  testimony. 

§  259.  Appeals,  exceptions,  evidence. 

§  260.  Fees  of  registers  and  receivers. 

§  201.  Payment  pending  contest. 

§  262.  Decisions  df  the  Land  Department — Their  authority. 

I   263.  Right  of  inspection  of  mine. 

§   264.  Mining  claims  in  riverbeds. 

§  265.  Timber  on  mineral  lauds — Railroad  companies. 

§  266.  Claims  not  within  any  mining  district. 

|   267.  Removal  of  machinery. 

§  268.  Criminal  offenses. 

§  269.  Various  provisions 


CHAPTER  I. 

INTRODUCTORY— THE  FIRST  MINING  ACT. 

§  1.   The  Act  of  1866 — The  repealed  sections. — It  had 

been  a  well-known  policy  of  the  Government  of  the  United 
States,  from  the  time  of  its  foundation,  to  reserve  from  sale  all 
lands  containing  minerals,  or  "  known  mines."  This  policy  was 
not  in  any  degree  disturbed  until  the  passage  of  the  Act  of 
1866,  known  as  the  first  Congressional  mining  act.  In  1850,  the 
policy  of  the  nation's  selling  the  mines  for  the  purpose  of  obtain- 
ing public  revenue  began  to  be  discussed  in  the  National  Legis- 
lature. But,  after  much  controversy,  the  arguments  in  favor  of 
leaving  the  mines  free  and  open  for  exploration  and  develop- 
ment prevailed,  and  adverse  measures  were  defeated  or  aban- 
doned. From  that  time  until  1866,  non-action  was  the  policy  of 
the  Government.  At  this  time,  the  necessity  of  Congressional 
action,  long  before  felt,  came  to  be  directly  recognized.  In  the 
annual  report  of  the  Secretary  of  the  Treasury  for  the  year  1865, 
the  substitution  of  an  absolute  title  in  fee  for  the  indefinite 
possessory  rights  or  claims  under  which  the  mines  were  held 
by  private  parties,  was  earnestly  recommended.  It  Avas  urged 
that  the  right  to  obtain  a  "  fee-simple  title  "  would  invite  to  the 
mineral  districts  men  of  character  and  enterprise,  and  would 
give  permanency  to  settlements  by  the  stimulus  which  owner- 
ship always  produces.  Under  the  then  existing  condition  of 
things,  constant  fear  was  felt,  by  those  who  were  engaged  in 
mining  pursuits,  that  some  disturbance  and  interference  with 
their  rights  of  property,  such  as  they  had,  would  occur.  This 
fear  was  not  groundless.1     Measures  for  the  sale  of  the  mines 

1  Valuable  coal-fields  had  been  discovered  on  the  public  lands  of  California, 
and  large  quantities  of  coal  were  being  taken  therefrom  by  intruders  on  the 
public  lands.  The  Act  of  March  3d,  1807,  provided  (2  U.  S.  Stats.  445)  that  if 
any  person  or  persons  should  take  possession  of,  or  make  a  settlement  on,  the 
public  lands  of  the  United  States,  which  lands  should  not  have  been  previously 
sold,  ceded,  or  leased  by  the  United  States,  or  the  claim  to  which  by  such 

w.  C— 1. 


2  INTRODUCTORY.  §  2 

and  for  the  taxation  of  the  miners,  as  a  class,  had  from  time  to 
time  been  proposed  ;  and,  besides,  the  Government  had  the  un- 
doubted legal  right  to  treat  every  miner  upon  the  public  domain 
as  a  naked  trespasser. 

The  passage  of  the  Act  of  1866,  with  all  its  defects,  marked 
a  change  in  the  Governmental  policy,  and  introduced  a  new  era 
in  the  history  of  mining  enterprise. 

§  2.  Section  one — License  without  title. — The  first  sec- 
tion (now  repealed)  jn*ovided :  "  Sec.  1.  That  the  mineral  lands 
of  the  public  domain,  both  surveyed  and  unsurveyed,  are 
hereby  declared  to  be  free  and  open  to  exploration  and  occu- 
pation by  all  citizens  of  the  United  States  and  those  who  have 
declared  their  intention  to  become  citizens,  subject  to  such  reg- 
ulations as  may  be  prescribed  by  law,  and  subject  also  to  the 
local  customs  or  rules  of  miners  in  the  several  mining  districts, 
so  far  as  the  same  may  not  be  in  conflict  with  the  laws  of  the 
United  States." 1 

This  section  declared  the  freedom  of  the  mines  by  oj^ening 
the  whole  public  domain  to  exploration  or  prospecting  in  search 
of  mines  and  minerals,  and  to  the  occupation  and  use  of  such 
mines  as  were  unoccupied,  or  which  might  be  discovered,  to  be 
worked   for    the  use  and    benefit  of    individuals,  partnerships, 

person  or  persons  should  not  have  been  previously  recognized  and  confirmed 
by  i!i"  United  States,  or  if  any  person  or  persons  should  cause  such  lands  to  be 
tli us  occupied,  taken  possession  of,  or  settled,  or  should  survey,  or  attempt 
to  survey  or  designate,  any  boundaries  on  such  lands,  such  person  or  persons 
should  forfeit  any  right  to  such  lands,  and  the  President  of  the  United  States 
might  dired  the  marshal  of  the  district  to  remove  from  such  lands  any  such 
person  or  persons,  and  to  employ  snch  military  force  as  might  be  necessary  for 
that  purpose.  And  the  persons  on  such  lands  in  violation  of  tin-  provisions  of 
the  a<t.  were  liable  to  fine  and  imprisonment  in  the  manner  declared  in  the  act. 
This  act  was  considered  by  the  then  Attorney-General  of  the  United  States,  in 
i  a  providing  ample  means  of  protecting  the  lands  in  question  from  the  in- 
trusion complained  of  until  <  iongress  si  a  add  establish  some  method  of  bringing 
tie  lands  into  the  market.  The  Attorney-*  l-eneral  then  advised  that  the  Presi- 
dent should  issue  instructions  to  the  marshal  of  the  district  to  remove  all  "  in- 
truders" from  the  lands,  and,  in  such  manner  as  might  lie  most  effective, 
prevent  the  spoliations  of  which  complaint  was  made,  and  lor  this  purpose,  if 
necessary,  to  authorize   imn  to  call  to  his  assistance  any  military  force  which 

might  beneax  at  hand,    (opinion  of  Atty.-Gen.  U.  S.  February  nth,  L862 ;  10 
Op.  Alt  v.-' ..  a    I    1. 1    I  iee,  al  )0,  I   idled  States  r.  Parrott,  1  McA.  < '.  < '.  271;  lilan- 
i  hard  &    Weeks'  Leading  Cases  OD  Mines  and  Mining  Water  I  lights,  ill. 
i  Act  ,,f  July  26th,  L866;  11  U.S.  Stats.  251. 


§    2  TIIE   FIRST   MINING    ACT.  3 

corporations,  or  companies.  These  privileges  were  limited  to 
citizens  of  the  United  States,  and  to  those  who  might  declare 
their  intention  to  become  such.  Exploration  and  occupation 
were  subject  to  such  regulations  as  might  be  prescribed  by  law  : 
it  was  not  said  whether  by  the  law  of  Congress  alone,  or  by  the 
laws  of  the  respective  States  and  Territories  in  which  the  mines 
might  be  situated.  But  the  fifth  section  x  provided,  as  a  condi- 
tion of  sale  to  be  expressed  in  the  patent,  that  "in  the  absence 
of  necessary  legislation  by  Congress,  the  local  legislatures  may 
provide  rules  for  working  mines,  involving  easements,  drainage, 
and  other  necessary  means  to  their  complete  development." .  The 
laws  referred  to,  then,  must  have  been  those  of  the  local  legis- 
lature, in  the  absence  of  regulations  by  Congress. 

The  other  restriction  was  that  of  the  local  customs  or  rules  of 
miners  in  the  several  mining  districts,  not  in  conflict  with  the 
laws  of  the  United  States.  These  regulations  were  fully  recog- 
nized throughout  the  act.  But  they  also  were  required  to  be 
consistent  with  the  laws  of  the  States  and  Territories. 

The  first  section  conferred  no  title  to  mining  claims,  other  than 
possessory  rights,  and  was  entirely  distinct  in  many  respects 
from  the  residue  of  the  act,  relating  to  the  acquisition  of  title 
by  patent  to  veins  of  the  four  metals  named.  It  conferred  a 
right  of  occupation  and  appropriation,  without  charge,  of  all 
minerals,  ores,  and  metals  dug  from  the  placers  or  beds  of  ore, 
or  raised  by  vein-mining.  It  constituted  a  mere  license  by  the 
Government  to  go  upon  the  public  domain  and  search  for  min- 
erals— metalliferous  or  non-metalliferous — and  appropriate  them. 
In  effect,  it  conferred^  a  right  to  commit  an  act  on  the  public 
land,  which,  before  the  law,  was  clearly  a  trespass.  And  no 
other  title  than  the  possessory  claim  conferred  by  the  license 
was  provided  for,  under  the  law,  to  any  class  of  claims  but  to  gold, 
silver,  copper,  and  cinnabar  in  place,  as  provided  in  section  two. 
Placer  claims,  river  diggings,  gravel  and  cement  beds,  as  valu- 
able as  some  of  them  were,  seemed  totally  without  the  purview 
of  the  law,  so  far  as  title  Avas  concerned.2  It  became  important, 
therefore,  to  know  what  the  extent  or  effect  of  this  license  was. 
In  ^      first  place,  it  might  have   been  revoked  at  any  time  by 

i  Stat.  Sec  2328. 

2  But  see  Decision  of  Comr.  Aug.  27th,  186S;  Zabriskie's  Land  Laws,  21S. 


4  INTRODUCTORY.  §  2 

Congress  by  a  simple  repeal  of  the  law,  and  the  right  would 
end.  Unlike  a  pre-emption  claim,  which  gives  precedence  to 
purchase,  no  equity  attached  upon  an  entry  with  an  intention 
to  improve  and  purchase.1 

The  Government  could  set  up  no  right  to  the  minerals  ex- 
tracted from  a  claim  while  the  law  remained  in  force,  or  after 
its  repeal,  because  ownership  attached  to  them.  It  was  by  the 
express  sanction  of  the  Government  that  the  miner  entered  upon 
the  claim  and  worked  it. 

No  estate  was  granted  by  the  act  in  the  land,  or  minerals  in 
the  land,  by  the  license,  of  any  certain  or  determinate  tenure,  as 
in  the  case  of  a  lease.  The  property  in  the  minerals  was 
granted  only  Avhen  they  became  severed  from  the  soil,  and  liable 
to  be  recovered  in  an  action  of  trover.  At  common  law,  the 
grantee  of  a  license  could  not  bring  ejectment,  because  the  grantor 
was  supposed  to  continue  in  possession,  and  this  feature  was  the 
test  in  distinguishing  between  a  lease  and  a  license.2  But  the 
grantee  of  such  a  license  from  the  Government  could  maintain 
such  an  action  for  the  possession  of  his  claim,  both  by  State 
laws  and  at  least  by  implication  under  the  Act  of  Congress  of 
the  27th  of  February,  1865,  relating  to  the  Courts  of  Nevada.3 
In  other  respects,  the  common-law  rules  applicable  to  licenses  to 
dig  ore  governed  those  claims,  and  the  act  was  to  be  interpreted 
as  such  an  authority  as  excused  a  trespass,  and  which  regarded 
rather  the  act  itself  than  its  connection  with  the  land,  or  that 
merely  amounted  to  a  bai-e  permission  or  dispensation  to  do  or 
suffer  certain  temporary  acts,  and  gave  no  real  beneficial  interest 
in  the  land.4  The  Supreme  Court  of  the  United  States,  in  the 
case  <•('  Gratiot,  gave  the  legal  definition  of  a  lease,  as  distin- 
guished Erom  a  milling  license,  upon  a  contract  made  by  the 
authority  of    the  President  under    the    Act  of  1807,  authorizing 

him  t<>  Lease  Lead-mines. 

The  Courl  Bay:  "The  contract  purports  to  be  a  license  for 
smelting  Lead-ore,  and  it  is  objected  that  it  is  not  a  lease  within 
the  act    of   Congress.      The  legal    understanding  of  a   lease   for 

1  See  People  '.  Shearer,  30Cal.  646;  Yule's  Mining  Claims,  355,  356. 
-  Bainbridge  on  M  Lnes,  246. 
:;  i:;.  tal      itL.  in. 
Bainbridge  on  Mines,  252;  Blanchard  \-  Weeks'  Leading  Cases  on  Mines  and 
Mining  Water  Rights,  <  baps.  14,  15. 


§§  3-4  THE    FIRST   MINING    ACT.  5 

years  is  a  contract  for  the  possession  and  profits  of  land  for  a 
determinate  period,  with  the  recompense  of  rent.  The  contract 
in  question  is  strictly  within  the  definition."  *  The  license  was  in 
the  nature  of  a  tenancy  at  will,  revocable  at  pleasure,  and  until 
an  entry  and  purchase  of  a  lode-claim,  was  applicable  to  all  the 
privileges  granted  under  the  Act  of  1866.2 

There  was  nothing  obligatory  on  claimants  to  proceed  under 
the  Act  of  1866,  and  where  they  failed  to  do  so,  there  being  no 
adverse  interest,  they  held  the  same  relations  to  the  premises 
they  worked  as  before  the  passage<  of  the  act,  with  the  ad- 
ditional guarantee  that  they  possessed  the  right  of  occupancy 
under  the  statute.3 

§  3.  Duties  of  registers  and  receivers. — It  became  the 
duty  of  registers  and  receivers,  upon  the  passage  of  the  Act  of 
1866,  to  acquaint  themselves  with  the  local  mining  customs  and 
usages.  In  acting  upon  individual  claims,  a  perfect  record  there- 
of was  required  to  be  taken  and  preserved  by  the  register  and 
receiver,  and  accompanied  by  a  diagram  or  plat  fixing  the  out- 
boundaries  of  the  district  in  which  such  customs  and  usages  ex- 
isted.4 As  Sec.  1  of  the  Act  of  1866  did  not  relate  to  title,  the 
surveyors,  receivers,  and  registers  had  no  duty  to  discharge  under 
it.     The  instructions  were  only  applicable  to  the  other  sections.5 

The  diagram  or  plat  fixing  the  out-boundaries  of  the  district 
in  which  the  customs  and  usages  existed,  was  not  in  practice 
found  easy  of  execution.  The  names  of  the  districts  were 
accidentally  given,  governed  by  no  rule  ;  the  boundaries  uncertain 
and  undefined,  except  when  controlled  by  well-known,  natural 
objects ;  the  districts  frequently  changed  or  divided,  and  per- 
haps never  made  the  subject  of  actual  survey — a  record  of  the 
customs  and  regulations  was  an  easier  matter.6 

§  4.  Title  and  patent. — The  second  section  (also  repeal- 
ed) read :  "  Sec.  2.  That  whenever  any  person  or  association  of 

i  U.  S.  v.  Gratiot,  14  Pet.  U.  S.  526. 

2  Yale's  Mining  Claims,  355,  356,  357. 

3  Instructions  Jan.  14th,  1867;  Zabriskie's  Land  Laws,  200;  Copp's  U.  S.  Min- 
ing Decisions,  239;  Gold  Hill  Quartz  Mining  Co.  v.  Isli,  5  Oregon,  104. 

4  Instructions  Jan.  14th,  1867;  Zabriskie's  Land  Laws,  200;  Copp's  U.  S.  Min- 
ing Decisions,  239. 

5  Yale's  Mining  Claims  and  "Water  Eights,  357,  358. 
« Ibid.  359. 


6  INTRODUCTORY.  §§  5-6 

persons,  claim  a  vein  or  lode  of  quartz,  or  other  rock  in  place,  bear- 
ing gold,  silver,  cinnabar,  or  copper,  having  previously  occupied 
and  improved  the  same  according  to  the  local  customs  or  rules 
of  miners  in  the  district  where  the  same  is  situated,  and  having 
expended  in  actual  labor  and  improvements  thereon  an  amount 
of  not  less  than  one  thousand  dollars,  and  in  regard  to  whose 
possession  there  is  no  controversy  or  opposing  claim,  it  shall 
and  may  be  lawful  for  said  claimant  or  association  of  claim- 
ants to  file  in  the  local  land  office  a  diagram  of  the  same,  so 
extended,  laterally  or  otherwise,  as  to  conform  to  the  local  laws, 
customs,  and  rules  of  miners,  and  to  enter  such  tract  and  re- 
ceive a  patent  therefor,  granting  such  mine,  together  with  the 
right  to  follow  such  vein  or  lode,  with  its  dips,  angles,  and 
variations,  to  any  depth,  although  it  may  enter  the  land  ad- 
joining, which  land  adjoining  shall  be  sold  subject  to  this  con- 
dition." 1 

§  5.  Limitation  of  the  right  to  obtain  patents  under 
the  Act  of  1866.  This  section  limited  the  right  to  apply  for 
and  receive  patents  for  mining  claims  to  persons  :  1st.  TV  ho 
had  occupied  and  improved  their  claims  according  to  the  local 
customs  or  rules  of  miners.  2d.  AVho  had,  by  themselves  or 
their, grantors,  held  and  worked  their  claims  for  a  period  equal 
to  the  time  prescribed  by  the  Statute  of  Limitations  for  min- 
ing claims  of  the  State  or  Territory  where  the  same  might  be 
situated.  3d.  Who  had  expended,  in  actual  labor  and  im- 
provements upon  their  respective  claims,  an  amount  of  not  less 
than  one  thousand  dollars.  4th.  In  regard  to  whose  possession 
there  was  no  controversy  or  opposing  claim.2 

§  6.  Applicants  for  patent  must  have  had  the  local  pos- 
sessory rights.  The  mining  acl  authorized  applications  lor  pat- 
ents by  persons  having  previously  occupied  and  improved  their 
claims  according  to  the  local  customs  and  rules  ut'  miners,  and 
who  had  expended  in  actual  labor  and  improvements  (hereon  an 
amount  not  less  than  $1,000  on  each  claim,  and  such  claim- 
ants were  authorized  to  include  in  their  applications  only    those 

i  ah  .,f  July  26th,  L866;  1 1  U.S.  Stat.  251. 
I.,  tractions  A.ug.  8th,  L870;  Copp'a  I '.  S.  Mining  I  (ecisiona,  266. 


§  6  THE    FIRST   MIXING    ACT.  7 

claims  to  which  they  had  possessory  titles,  under  and  by  virtue 
of  such  local  customs,  and  they  had  no  right  to  include  prem- 
ises to  which  no  such  possessory  rights  had  attached. 

Persons  having  no  possessory  rights  according  to  the  local 
mining  laws  and  regulations,  and  who  had  not  made  the  im- 
provements  required  by  the  mining  act,  were  not  authorized  to 
apply  for  patents,  and  the  attempt  to  do  so  was  held  to  be  a 
fraud,  not  only  against  the  rightful  owners,  but  against  the  policy 
of  the  act  itself.1 

The  evidence  was  required  to  show  that  the  proper  notice  and 
diagram  were  posted  upon  the  premises,  and  identify  the  claims 
alleged  in  the  petition  and  advertisement.  Proof  of  citizenship 
was  required,  and  the  amount  of  land  could  not  exceed  that 
authorized  by  law. 

The  vein  or  lode  of  quartz,  or  other  rock  in  place,  bearing 
gold,  silver,  cinnabar,  or  copper,  to  which  a  patent  could  be 
obtained,  was  one  Avhich  had  been  previously  occupied  and  im- 
proved according  to  local  customs,  and  on  which  not  less  than 
$1,000  had  been  expended  in  actual  labor  and  improvements,  and 
also  one  "  in  regard  to  whose  possession  there  was  no  controversy 
or  opposing  claim."  2 

1  Decision  Commissioner,  January  2Sth,  1S69;  Copp's  U.  S.  Mining  Decisions, 
20. 

2  Evidence  required — In  a  given  case,  a  company,  being  the  applicants,  pre- 
sented the  following  documents  to  substantiate  their  claim  : 

1st.  The  written  application  of  the  company;  2d.  Copy  of  the  original  loca- 
tion; Sd.  Copy  of  three  sections  of  the  mining  customs  of  the  district;  4th.  Affi- 
davits as  to  posting  the  notice  and  diagram  on  the  claim:  5th.  A  copy  of  the 
notice  and  diagram;  6th.  The  register's  certificate  of  application  to  enter  the 
land;  7.  Copy  of  published  notice;  8th.  Receiver's  receipt  for  the  price  of  the 
land;  9th.  The  register's  certificate  of  entry  and  payment  of  purchase-money; 
10th.  Receipt  of  newspaper  publisher;  11th.  The  certificate  of  the  Surveyor- 
General  of  payment  of  fees  for  surveying  and  office  work.  In  addition  to  this 
evidence,  the  company  was  required  to  present:  12th.  Evidence  under  the  State 
law  that  the  company  was  incorporated  as  stated,  and  that  the  applicants  were 
entitled  to  represent  the  same  as  trustees;  13th.  Evidence  of  the  character  of 
the  vein  exposed,  the  evidence  to  be  furnished  by  the  Surveyor-General  by 
indorsing  it  on  the  plat;  14th.  Evidence  that  not  less  than  si, 000  had  been  ex- 
pended on  the  claim  in  actual  labor  and  improvements.  This  fact,  in  regard  to 
the  actual  labor  and  improvements,  was  also  to  be  certified  by  the  Surveyor- 
General,  by  indorsement  on  the  plat,  in  addition  to  which  there  was  required  an 
affidavit,  or  the  verbal  testimony  reduced  to  writing  by  the  local  land  officers, 
of  two  or  more  reliable  persons  cognizant  of  the  facts  of  such  improvements, 
who  would  state  particularly  of  what  the  improvements  consisted,  when 
they  were  made,   and    by  what   claimants,    and    estimate  the  value  of    the 


8  INTRODUCTORY.  §  6 

Congress  had  the  power  to  make  such  qualifications  in  grant- 
ing mineral  lands  as  it  saw  fit.     It  chose  to  say  that  no  such 

same  specifically.  15th.  The  notice  of  location  was  required  to  name  the 
lode.  Some  proof  was  required  of  holding  the  possessory  title,  and  that  the 
copy  of  the  original  location  transmitted  referred  to  the  lode  claimed.  16th. 
The  land  office  recognized  the  mode  of  transfer  from  the  original  locator  to 
the  applicant  authorized  by  the  State  law.  The  proof  as  to  how  title  was 
acquired  by  applicants  was  required  to  be  such  as  to  enable  the  commissioner 
to  act  understandingly.  If  parties  held  by  deed  or  bill  of  sale,  a  properly 
certified  copy  of  the  same  was  to  be  transmitted ;  and  where  a  law  sanctioned  a 
verbal  sale  of  a  mining  claim  accompanied  by  immediate  transfer,  proof  of  the 
vendee's  title,  actual  possession  at  the  time  of  the  sale,  accompanied  by  im- 
mediate transfer  of  the  same  to  the  vendees,  were  also  ordered  to  be  furnished, 
together  with  a  certificate,  from  the  county  recorder  that  no  adverse  conveyance 
appeared  on  his  records  for  the  premises  claimed;  17th.  Proof  was  required  (a 
certificate  from  the  officers  being  sufficient)  that  a  diagram  of  the  claim  had 
been  filed  in  the  local  land  office,  and  a  notice  of  the  application  posted  in  the 
register's  office;  18th.  A  certified  copy  of  a  portion  of  the  mining  regulations 
was  deemed  insufficient.  A  certified  copy  of  all  the  customs  complete,  as  they 
existed  at  the  date  of  the  location,  was  required;  19th.  The  survey  and  plat  of 
the  claim  was  also  ordered  to  be  transmitted  to  the  General  Land  Office,  together 
with  a  copy  of  the  field-notes,  with  an  approved  plat,  having  on  it  the  indorse- 
ments required  by  the  third  section  of  the  Act  of  1866,  and  representing  the 
claim  in  relation  to  the  township  and  standard  liues  of  the  public  surveys;  20th. 
An  affidavit  was  required  of  reliable  person,  or  persons,  acquainted  with  the 
premises,  to  the  effect  that  the  claim,  as  surveyed  and  platted,  contained  but 
one  known  vein  or  lode.  When  applicants  presented,  as  proof  of  important 
facts,  the  affidavits  of  absent  persons,  the  local  officers  were  ordered  to  have  the 
characters  for  truth  of  such  absent  deponents  vouched  for  by  some  responsible 
officer  to  whom  they  were  known,  and  if  this  were  not  done  in  good  faith,  and 
the  officers  satisfied  of  the  credibility  of  the  deponents,  the  affidavits  were  not 
to  lie  received.  All  transmittals  were  to  be  accompanied  with  a  letterof  advice, 
tin-  testimony  in  the  case,  and  the  joint  opinion  of  the  register  and  receiver  on 
tin-  claims.  (Decision  of  Com.  June  6th,  1868;  lure  Kelsey  Lode,  Zabriskie's 
Land  Laws,  212.) 

In  still  another  case  the  papers  were  found  satisfactory  on  the  following 
points  :  1st.  'flu-  character  of  the  vein  exposed;  2d.  The  expenditure'  in  labor 
and  improvements;  3d.  Thai  diagram  and  notice  were  filed  and  posted  in  the 
register's  office  fur  ninety  days,  and  thai  thr  required  notice  was  published  in  a 
newspaper  for  the  same  period;  4th.  That  the  claim  was  surveyed  and  platted, 
ami  survey  and  plat  approved  and  indorsed  as  required  by  statute;  5th.  That 
i  spi  rises  of  survey,  plat,  ami  notice,  ami  the  price  of  the  land,  had  been  paid 
by  the  claimants ;  6th.  A.s  to  the  citizenship  of  the  claimants;  7th.  As  to  certain 
transfers  oJ  interest,  the  proof  was  round  insufficient,  and  further  proof  required ; 

8th.  That    the   notice  and   diagram   were   posted    in   a  conspicuous    place  on  the 

claim,  as  required  by  the  statute;  9th.  That  the  premises  claimed  and  surveyed 

contained  hut  one  vein  or  lode;  LOth.  in  l  oca  t  ions  of  so  large  a  size  as  1,000  feet, 

the  printed  copy  of  the  mining  laws  transmitted  was  considered  insufficient 
proof,  and  was  required   to  be  supported   by  the  corroborative  testimony  of  at 

leasl  two  Intelligent  prat  tical  miners  of  the  district,  familiar  with  its  mining 
customs  and  regulations.  Proof  was  allowed  to  be  furnished  cither  orally  in 
the  office,  to  be  reduced  to  writing,  or  by  affidavits;  bul  in  case  the  latter 


§   6  THE    FIRST    MINING    ACT.  9 

lands  should  be  patented  unless  they  were  those  that  were  free 
from  all  questions  relating  to  the  possession. 

Not  content  with  saying  that  the  possession  should  be  free 
from  controversy,  which  might  imply  active  assertion  of  right 
by  proceedings  in  Court,  or  otherwise,  it  did  say  that  the  mines 
should  be  free  from  all  opposing  claims.  That  is  to  say,  no 
patent  shall  issue  for  any  mineral  lands  about  which  any  one, 
other  than  the  petitioner,  asserts  any  right  of  possession,  and  all 
3ontroversy  must  relate  to  possession,  for  title  is  in  the  Govern- 
ment, and  therefore  cannot  be  in  question. 

A  controversy  and  opposing  claim  was,  therefore,  sufficient, 
irrespective  of  its  merits,  to  prevent  the  issuance  of  a  patent 
until  the  claim  was  decided.1 

Section  two  was  the  most  important,  and  the  controlling 
section  of  the  act.  The  occupation,  either  before  or  after  the 
act,  preceded  the  right  of  entry.  The  expenditure  in  actual 
labor  or  'improvements  on  the  claim,  in  a  sum  equal  to  that 
named  in  the  act  under  the  district  laws,  was  absolutely  essen- 
tial as  the  condition  of  development.  This  provision  was  not  a 
condition  subsequent,  merely  directory,  to  be  dispensed  with  at 
discretion,  but  one  to  be  performed  in  good  faith.  Such  is  the 
rule  of  interpretation  under  the  Spanish  code,  which  applies  the 
principle  of  strictissimi  juris  to  the  necessary  work.  If  a  con- 
troversy occurred  about  the  title  to  the  claim,  the  entry  could 
not  be  made  till  it  was  judicially  decided.  But  the  existence  of 
a  controversy  did  not  prevent  the  filing  of  the  application  for  an 
entry  of  the  claim  as  a  jurisdictional  fact,  necessary  to  be 
averred  negatively,  as  the  right  to  make  the  application  could 
not  be  defeated  by  any  loose  or  indefinite  assertion  of  title,  but 

method  was  adopted,  the  credibility  of  the  deponents  was  to  be  properly 
vouched  for  by  a  responsible  officer,  to  whom  they  were  either  personally 
known,  or  who,  upon  information  obtained  from  competent  and  reliable  sources, 
would  feel  himself  justified  in  certifying  to  their  characters  for  truth  and  vo- 
racity, and,  in  matters  requiring  judgment  and  discrimination,  to  their  intelli- 
gence also.  The  papers  transmitted  Avere  required  to  be  accompanied  with  an 
opinion  as  to  the  character  and  intelligence  of  all  the  witnesses  and  the  good 
faith  of  the  whole  proceeding.  (In  re  Clear  Creek  Quicksilver  Mine,  Degision  of 
Commissioner,  May  15th,  1868;  Zabriskie's  Land  Laws,  216. 

xNew  Idria  Case,  Opinion  of  Assistant  Atty.-Gen.  U.  S.  July  21st,  1871. 
Decision  Acting  Secretary  of  Interior,  August  4th,  1871;  Copp's  U.  S.  Mining 
Decisions,  47. 


10  INTRODUCTORY.  §  7 

was  to  be  presented  under  the  act  in  form,  in  order  to  be  rec* 
ognized  as  a  controversy. 

This  section  did  not  explicitly  require  a  written  application 
for  the  title  or  patent  to  the  claim  or  mine.  The  claimant  was 
only  required  "  to  file  in  the  local  office  a  diagram  of  the  same." 
The  third  section  spoke  of  the  notice  of  an  "  intention  to  apply 
for  a  patent."  In  no  other  part  of  the  act  was  reference  made 
to  written  applications  for  a  patent.  The  first  subdivision  of  the 
instructions  under  the  section  referred  to  "  the  application  filed 
as  aforesaid,"  but  the  language  was  not  to  be  found  in  the 
section.  It  was,  however,  necessarily  implied,  and  the  implica- 
tion had  all  the  force  of  positive  expression.  The  written 
application  should  have  possessed  all  the  requisites  stated  by 
the  law  as  conditions  precedent,  and  shown  upon  its  face,  by  a 
plain  and  succinct  statement,  that  the  applicant  brought  himself 
within  the  terms  of  the  law. 

The  form  should  have  possessed  the  substantial  requisites  of 
a  pleading;  as  the  source  of  title  it  became  the  original  muni- 
ment in  the  claim  of  title,  followed  by  the  final  paper — the 
patent.1 

§  7.  Citizenship  required. — There  was  a  difference  between 
the  restricted  language  of  the  first  section,  giving  the  freedom  of 
the  mines  to  citizens  of  the  United  States  and  those  who  declared 
their  intention  of  becoming  citizens  ;  and  the  unqualified  language 
of  the  second  section  :  "  Any  person,  or  association  of  persons  " 
"  who  claim  a  vein  or  lode,"  etc.  There  was  a  question  whether 
an  alien  in  possession  of  a  lode,  who  had  expended  the  neces- 
sary  sum  and  conformed  to  the  local  rules  and  customs  of 
miners,  could  make  an  application  alone,  or  with  his  associates, 
for  a  patent.     The  instructions  wen-  at  first  silent. 

Ordinarily,  an  alien  might  be  entitled  to  make  application. 
The  genera]  language  of  the  section  was  not  restrained  by  the 
(ir-i  section,  whirl,  had  no  relation  to  titles.  That  aliens  were 
in  possession  <>l'   such  claims,  alone  and    associated  with  citizens, 

u;i  a  well-known  Eact,  and  thai  foreign  capital  had  assisted  to 
;|  large  extent  in  developing  our  mines  was  also  well-known. 
There   was   no  provision  of  the  law  to  deprive  them  of  their 

i  V;il'-'s  Mining  Claims,  362. 


§    8  THE    FIRST   MINING    ACT.  11 

claims  by  confiscation,  or  providing  for  a  proceeding  in  the  na- 
ture of  office  found,  the  subject  will  be  more  fully  discussed 
hereafter  in  considering  applications  under  the  Act  of  1872 
and  the  Revised  Statutes.1 

§  8.  Entry  and  diagram. — Under  the  Departmental  In- 
structions, it  was  held  that  mining  claims  might  be  entered  at 
any  district  land  office  in  the  United  States  under  this  law,  by 
any  person  or  association  of  persons,  corporate  or  incorporate 
In  making  the  entry,  however,  such  a  description  of  the  tract 
was  required  to  be  filed  as  would  indicate  the  vein  or  lode,  or 
part  or  portion  thereof,  claimed,  together  with  a  diagram  repre- 
senting, by  reference  to  some  natural  or  artificial  monument, 
the  position  and  location  of  the  claim,  and  the  boundaries 
thereof,  so  far  as  such  boundaries  could  be  ascertained.  In  all 
cases,  the  number  of  feet  in  length  claimed,  on  the  vein  or 
lode,  was  to  be  stated  in  the  application  filed,  and  the  lines 
limiting  the  length  of  the  claim  were  required  in  all  cases  to 
be  exhibited  on  the  diagram,  and  the  course  or  direction  of  such 
end-lines,  when  not  fixed  by  agreement  with  the  adjoining  claim- 
ants, nor  by  the  the  local  customs  or  rules  of  the  miners  of 
the  district,  were  ordered  to  be  drawn  at  right  angles  to  the 
ascertained  or  apparent  general  course  of  the  vein  or  lode.2 

Where,  by  the  local  laws,  customs,  or  rules  of  miners  of  the 
district,  no  surface  ground  was  permitted  to  be  occupied  for  min- 
ing purposes,  except  the  surface  of  the  vein  or  lode,  and  the  walls 
of  such  vein  or  lode  were  unascertained  and  the  lateral  extent 
of  such  vein  or  lode  unknown,  it  was  sufficient,  after  giving  the 
description  and  diagram,  to  state  the  fact  that  the  extent  of  such 
vein  or  lode  could  not  be  ascertained  by  actual  measurement, 
but  that  the  vein  or  lode  was  bounded  on  each  side  by  the  wall 
of  the  same,  and  to  estimate  the  amount  of  ground  contained 
between  the  given  end-lines  and  the  unascertained  Avails  of  the 
vein  or  lode  ;  and  in  such  case  the  patent  issued  for  all  the  land 
contained  between  such  end-lines  and  side-walls,  with  the  right 
to  follow  such  vein  or  lode,  with  all  its  dips,  angles,  and  varia- 

1  Yale's  Mining  Claims  and  Water  Rights,  3G1,  362,  363. 

2  Instructions  Jan.  14th,  1867;  Zabriskie's  Land  Laws,  200;  Copp's  U.  S.  Min- 
ing Decisions,  239. 


12  INTRODUCTORY.  §  8 

tions,  to  any  depth,  although  it  might  enter  the  land  adjoining : 
provided,  the  estimated  quantity  should  be  equal  to  a  horizontal 
plane  bounded  by  the  given  end-lines,  and  the  walls  on  the  sides 
of  such  vein  or  lode.1  Where,  by  the  local  laws,  customs,  or 
rules  of  miners  of  the  district,  a  given  quantity  of  surface- 
ground  was  fixed  for  the  purpose  of  mining  or  milling  the  ore, 
the  diagram  and  description  in  the  entry  were  required  to  cor- 
respond with  and  include  so  much  of  the  surface  as  was  allowed 
by  such  laws,  customs,  or  rules  for  that  purpose. 

But  where,  by  such  customs  and  rules,  no  surface-ground  was 
permitted  to  be  occupied  for  mining  purposes,  except  the  sur- 
face of  the  vein  or  lode,  and  the  walls  of  such  vein  or  lode  were 
ascertained  and  well-known,  such  wall  was  required  to  be  named 
in  the  description  and  marked  in  the  diagram  in  connection  with 
the  end-lines  of  such  claims.  In  the  absence  of  uniform  rules 
in  any  mining  district,  limiting  the  amount  of  surface  to  be  used 
for  mining  purposes,  actual  and  j^eaceable  use  and  occupation 
for  mining  or  milling  purposes  were  to  be  regarded  as  evidence 
of  a  custom  of  miners  authorizing  the  same.  And  the  ground 
so  occupied  and  used  in  connection  with  the  vein  or  lode,  and 
being  adjacent  thereto,  might  be  included  within  the  entry,  and 
the  diagram  was  to  embrace  the  same  as  appurtenant  to  the 
mine.2 

Where  the  claimant  or  claimants  desired  to  include  within 
their  entry  and  diagram  any  surface-ground  beyond  the  surface 
of  the  vein,  it  was  necessary,  upon  filing  the  application,  to  fur- 
oish  the  register  of  the  land  office  with  proof  of  the  usage,  law, 
or  custom  under  which  he  or  they  claimed  such  surface-ground, 
and  such  evidence  might  consist  either  of  the  written  rnles  of  the 
miners  of  the  district,  or  the  testimony  of  two  credible  witnesses 
to  the  uniform  custom,  or  the  actual  use  and  occupation  ;  which 
testimony  was  required  to  be  reduced  to  writing  by  the  register 
and  receiver,  and  filed  in  the  register's  office  with  the  applica- 
tion, a  record  thereof  to  be  made.3  Where  the  diagram  showed 
and  the  application  stated  that  "no  surface-ground   is  claimed 

1  [natructioin  .Ian.  Ilth,  Isiii;  /aliriskic's  Land  Laws,  200;  Copp's  U.  S.  Min- 
ing I  tecisions,  239. 
-Il.i.l. 

8    II, Hi. 


§  9  THE    FIRST   MINING    ACT.  13 

along  the  line  of  the  lode,"  this,  it  was  held,  failed  to  comply 
with  the  requirement  of  a  diagram  "  so  extended,  laterally  or 
otherwise,  as  to  conform  to  the  local  laws,  customs,  and  rules  of 
miners."     Such  an  application  was  rejected.1 

§  9.    Defects  in  the  instructions. — The  greater  part  of  the 
instructions  related  to  the  mode  of  the  surveys,  descriptive  of  the 
land  to  be  patented.     The  law  did  not  change  the  system  of  sur- 
veys applicable  to  the  public  lands,  except  in  ordering  the  survey 
of  the  claims  upon  the  land  not "  hitherto  surveyed  by  townships, 
ranges,  and  sections,"  from  established  base  and  meridian  lines. 
The  deviation  from  the  rectangular   system,  authorized  by  this 
law,  exists  in  certain  cases  in  the  general  laws,  where  rectangular 
lines  are  impracticable  and  inexpedient,  as  remarked  by  Mr. Yale,2 
the  proviso  in  the  instructions   under  the  second  section,  that 
the  estimated  quantity  of  the  land  surveyed  should  be  equal  to 
a  horizontal  plane  bounded  by  the  given  end-lines,  and  the  walls 
on  the  sides  of  each  vein  or  lode,  and  the  other  parts  of  the 
instructions  under  this  section,  making  the  walls  of  the  lode  the 
lateral  boundaries,  whether  ascertained  or  unascertained,  where 
the  local  laws  did  not  give  surface-ground  beyond  the  walls, 
were  found  inadequate  to  the  purposes  of  the  law.     Such  local 
laws  were  not  generally  found  in  force  in  any  important  mining 
camp,  as  surface-ground  beyond  the  known,  probable  position 
of  the  walls  of  the  veins  is  nearly  always  absolutely  required 
for  working  purposes,  independent  of  drifting,  when  necessary. 
Nor  was  the  instruction  consistent  with  the  geological  forma- 
tions of  metalliferous  veins,  whether  we  adopt  the  theory  of  the 
filling  of  a  fissure  vein  by  an  expansive  force  from  below,  as 
applicable  to  true  fissure  lodes,  or  an  injection,  as  it  is  sometimes 
called,  or  by  infiltration  from  above,  as  applicable  to  another 
class  of  lodes.     "  Each  theory,"  says  Yale,  "  is  correct  in  given 
cases,  according  to  received  opinions.     In  the  first  case,  where 
the  walls  of  the  vein  are  rough,  an  increase  of  mineral  is  ex- 
pected with  an  increase   of    depth   and  frequent  irregularities 
of    width  in  the  vein ;  and  in  the  second  case,  where  the  vein 

1  In  re  Gould  and  Conde  Lodes,  and  McKibben  Lode.     Decision  of  Comr. 
March  24«h,  1873;  Copp's  U.  S.  Mining  Decisions,  165. 

2  Yale's  Mining  Claims,  3G3. 


14  INTRODUCTORY  §  10 

is  wide  at  top,  with  smooth  walls  of  the  same  material  on  both 
sides,  we  are  justified  in  assuming  that  the  vein  is  wedge- 
shaped,  thinning  gradually  as  the  walls  converge.  A  large  pro- 
portion of  metalliferous  veins  have  their  opposite  walls  nearly 
parallel,  and  Lyell  gives  an  example  in  the  celebrated  vein  of 
Audrensburg,  in  the  Hartz,  which  has  been  worked  at  a  depth 
of  500  yards  perpendicularly  and  200  horizontally,  retaining 
almost  the  entire  length  a  uniform  width  of  three  feet.  But 
many  lodes  are  extremely  variable  in  size,  being  only  one  or 
two  inches  in  one  part  and  eight  or  ten  feet  in  others,  and 
again  narrowing  as  before.  Such  alternate  swelling  and  COn- 
tracting  is  characteristic  of  these  lodes,  and  is  fully  explained." 
"  De  la  Beche  observes  that  the  walls  of  fissures  in  general  are 
rarely  perfect  planes  throughout  their  entire  course  ;  nor  could 
we  well  expect  them  to  be  so,  since  they  commonly  pass  through 
rocks  of  unequal  hardness  and  of  different  mineral  composition. 
If,  therefore,  the  opposite  sides  of  such  irregular  fissures  slide 
upon  each  other,  or  if  there  be  a  fault,  as  in  the  case  of  so  many 
lodes,  the  parallelism  of  the  opposite  walls  is  at  once  entirely 
destroyed.  The  great  mother-vein  of  Mariposa  and  Tuolumne, 
according  to  Prof.  Whitney's  report,  is  very  irregular  in  width, 
varying  from  two  feet  to  several  rods.  A  surface  width,  upon 
a  horizontal  plane,  bounded  by  the  ascertained  walls  of  the  lode 
at  the  surface,  did  not  satisfy  the  law  by  giving  the  entire  lode 
within  the  length  to  the  claimant,  including  its  increased  width 
as  ascertained  in  descending.1  The  law  itself  gives  the  right 
to  follow  the  lode  with  its  dips,  angles,  and  variations.  The 
instructions  were  belter  adapted  to  the  Comstock  lode,  which  is 
very  wide  near  the  surface,  than  to  lodes  in  general." 

§  10.  The  application,  under  the  Acts  of  18GG  and  1870, 
was  required  by  the  Land  Department  to  be  in  writing,  and  filed 
in  the  office  of  the  register  and  receiver  of  the  land  district  in 
which  the  claim  lay.  It  staled  the  name  of  the  applicant,  and 
whether  the  claim  was  applied  for  by  an  individual,  an  asso- 
ciation, or  an  incorporation  ;  the  name  and  extent  of  the  claim  ; 
the  character  of  the  ore  ;  the  mining  district,  county,  and  State  ; 
the  date  of  its  original  location,  according  to  the  mining rfjustoms; 

1  Kale's  Milling  Claims  and  Water  Bights,  361-3G4. 


§  10  TIIE    FIRST   MINING    ACT.  15 

where  the  same  was  recorded ;  whether  the  applicant  claimed 
as  a  locator  or  purchaser  ;  gave  a  description  of  the  premises 
claimed,  and  the  nature  of  the  improvements  made  or  labor 
performed ;  and  finally,  that  the  claimant  had  posted  a  "  diagram  " 
of  the  claim  in  a  conspicuous  place  thereon,  together  with  notice 
of  his  intention  to  apply  for  a  patent,  giving  the  date  of  the 
posting. 

With  the  application  the  claimant  filed  a  copy  of  the  "  dia- 
gram "  posted  on  the  claim,  which  "  diagram  "  was  recpaired  to 
represent  the  boundaries  of  the  premises,  as  fixed  by  the  local 
laws,  customs,  or  rules  of  miners ;  and  when  the  claim  lay  up- 
on surveyed  land,  it  showed  its  relation  to  the  public  surveys. 

Diagrams  of  placer  claims  upon  surveyed  lands  represented 
the  subdivision  which  the  claimant  desired  to  enter,  as  the  act 
required  such  entries  in  their  exterior  limits  to  conform  to  the 
legal  subdivisions.  With  the  diagram,  it  was  necessary  to  file 
a  copy  of  the  "  notice  "  posted  upon  the  claim.  This  notice 
stated  the  name  of  the  claimant ;  described  the  claim ;  gave  the 
names  of  the  adjoining  claims,  or  if  none  adjoined,  the  names  of 
the  nearest  claims  ;  stated  whether  it  was  a  placer  or  rock  claim : 
if  the  former,  the  approximate  area ;  if  the  latter,  the  estimated 
extent  of  the  surface-ground,  and  the  number  of  feet  claimed 
on  the  course  of  the  vein,  distinctly  stating  the  name  of  the 
lode,  and  the  character  of  the  vein  exposed  ;  the  mining  dis- 
trict, county,  and  State  in  which  it  lay  ;  whether  upon  surveyed 
or  unsurveyed  lands  :  if  the  former,  in  what  section,  township, 
and  range  ;  if  the  latter,  the  location  of  the  claim  relatively  to 
some  well-known  natural  object  or  landmark  in  the  vicinity ; 
and  finally,  the  notice  stated  that  it  was  the  intention  of  the 
claimant  to  apply  for  a  patent  for  the  premises  designated,  and 
upon  which  it  was  posted.1 

There  was  also  to  be  filed  with  the  application  satisfactory  evi- 
dence that  the  applicant  had  the  possessory  right  to  the  claim, 
agreeably  to  the  local  laws  or  customs  of  miners.  This  con- 
sisted of  a  certified  copy  of  the  laws  or  customs  of  the  miners 
of  the  district,  in  force  at  the  date  of  the  location  of  the  claim, 
of  a  certificate  under  seal,  of  the  county  or  mining  recorder, 

instructions  Aug.  8th,  1870,  Copp's  M.  D.  25G;  Instructions  Jan.  14th,  18G7, 
Ibid.  241;  Zahriskie's  Land  Laws,  200. 


16  INTRODUCTORY.  §  11 

giving  a  copy  of  the  record  of  the  original  location  of  the  claim, 
with  the  name  or  names  of  the  locators  ;  and,  if  the  applicant 
claimed  as  a  purchaser,  an  abstract  of  title  was  to  be  filed, 
tracing  the  right  of  possession  from  the  original  locators  to  the 
applicant.  Where  applicants  furnished  satisfactory  evidence 
that  they  and  their  grantors  had  held  and  worked  their  claims 
for  a  period  equal  to  the  time  prescribed  by  the  Statute  of  Limi- 
tations of  mining  claims  of  the  State  or  Territory  where  the 
same  might  be  situated,  such  evidence  being  sufficient  to  estab- 
lish a  right  to  a  patent  for  a  claim  so  held  and  worked,  upon 
compliance  with  the  other  provisions  of  the  law  and  instructions, 
the  proofs  above  enumerated  were  not  required.1 

§  11.  Publication  of  the  notice. — Upon  filing  these  papers, 
the  register  and  receiver  gave  the  same  careful  examination,  and 
if  found  to  be  regular,  the  register  ordered  the  publication  of 
the  "  notice  "  for  ninety  days  in  a  newspaper  published  nearest 
the  location  of  the  claim  ;  but  before  ordering  such  publication, 
the  register  required  the  claimant  to  enter  into  an  agreement 
with  the  publisher'  to  the  effect  that  no  claim  or  demand  should 
be  made  against  the  United  States  for  the  payment  of  such 
publication,  until  the  filing  of  which  agreement  the  register  was 
required  to  decline  to  order  the  publication.  The  cost  of  the  pub- 
lication of  notice  was,  therefore,  not  to  be  estimated  by  the  Sur- 
veyor-General. The  register  also  posted  copies  of  the  "notice" 
and  "  diagram  "  in  his  office  for  ninety  days,  and  on  forwarding 
the  case  to  the  General  Land  Office,  certified  that  they  were  so 
posted.  On  the  expiration  of  the  ninety  days,  the  claimant,  or 
bis  duly  authorized  agent,  filed  with  the  register  his  own  affida- 
vit, supported  by  at  least  one  other  person,  cognizant  of  the 
fact,  thai  the  "notice"  and  "diagram"  were  posted  in  a  con- 
spicuous  place  upon  the  claim  for  the  period  of  ninety  consecu- 
tive days,  giving  the  date  of  the  same.  The  affidavit  of  the 
publisher  was  also  required  to  be  filed,  to  the  effect  that  the 
••  notice,"  ;i  jniiitcfl  copy  of    which  was  attached,  was   published 

in  hi-  newspaper  Eor  ninety  days,  giving  the  dates  on  which 
Mich  publication  commenced  and  ended,  and  that  he  had  re- 
ceived payment  in  full  Eor  the  same.     These  affidavits  were  to 

1  [natructions  Aug.  8th,  L870j  Copp's  I'.  S.  Mining  Decisions,  257. 


§  12  THE    FIRST    MINING    ACT.  17 

be  taken  before  the  register  and  receiver,  or  any  officer  author- 
ized to  administer  oaths  within  their  district ;  but  if  taken 
before  a  magistrate  without  an  official  seal,  his  official  character 
was  to  be  authenticated  under  seal  by  the  county  clerk,  in  the 
usual  manner.  If  all  the  proof  furnished  was  satisfactory  to 
the  register  and  receiver,  and  no  adverse  claim  had  been  filed, 
those  officers,  at  the  end  of  the  ninety  days,  so  informed  the 
applicant  for  patent,  and  the  Surveyor-General,  who  made  an 
estimate  of  the  expense  of  surveying  and  platting  the  claim, 
except  in  the  case  of  placer  claims  on  surveyed  land,  where  no 
further  survey  was  required,  and  when  the  claimant  deposited 
the  amount  so  estimated  with  any  assistant  United  States 
treasurer,  or  designated  depository  in  favor  of  the  United 
States  Treasurer,  to  be  passed  to  the  credit  of  the  fund  created 
by  "  individual  depositors  for  surveys  of  the  public  lands,"  and 
filed  with  the  Surveyor-General  one  of  the  duplicate  certificates 
of  deposit,  that  officer  ordered  the  claim  to  be  surveyed  and  plat- 
ted in  accordance  with  the  regulations,  except  in  cases  where 
the  claimant  had  had  a  preliminary  survey  made  by  the  United 
States  deputy  surveyor,  for  the  purpose  of  perfecting  the 
diagram  and  notice  posted  on  the  claim,  in  which  case  such 
preliminary  survey  might  be  platted  and  adopted  by  the  Surveyor- 
General  for  the  final  survey.  Copies  of  plat  and  field-notes  of 
survey  were  to  be  sent  to  the  register  and  receiver,  and  to  the 
General  Land  Office,  the  latter  accompanied  by  the  certificate 
of  deposit.1 

The  register  and  receiver  examined  the  returns  of  survey,  and, 
if  satisfactory,  allowed  the  entry  to  be  completed  at  the  rate  o£ 
five  dollars  per  acre,  or  fractional  part  of  an  acre,  for  lode 
claims,  or  two  and  one-half  dollars  per  acre  for  placer  claims,, 
and  transmitted  all  the  papers  on  their  files  bearing  upon  the 
case  to  the  General  Land  Office,  together  with  their  joint  opin- 
ion thereon,  so  that  a  patent  might  be  issued  if  the  proceed- 
ings were  found  regular.2 

§  12.  The  duties  of  claimants,  registers,  and  receivers 

under  the  Act  of  1866,  were  abstracted  by  the  Department  as  fol- 

1  Instructions  August  8th,  1870;  Copp's  U.  S.  Mining  Decisions,  258. 

2  Ibid. 

W.  C.— 2. 


18  INTRODUCTORY.  §  12 

lows  :  "  Claimant  to  post  a  notice  on  the  claim,  giving  information 
of  his  intention  to  apply  for  a  patent ;  to  file  a  diagram  with  the 
register,  together  with  the  evidence  of  the  rules  of  miners  in 
support  of  the  claim  and  its  extent.  After  the  diagram  and 
notice  have  been  posted  ninety  days,  and  no  adverse  claim  filed, 
the  claimant  to  apply  to  the  Surveyor-General  for  a  survey  of 
the  claim,  deposit  the  amount  estimated  by  the  Surveyor-Gen- 
era] to  cover  the  expenses  of  the  survey,  platting,  and  notice, 
with  any  Assistant  United  States  Treasurer,  or  designated  de- 
pository in  favor  of  the  United  States  Treasurer,  to  be  passed 
to  the  credit  of  the  fund  created  by  "  individual  depositors  for 
the  surveys  of  public  lands,"  taking  duplicate  certificate  of 
deposit,  filing  one  with  the  Surveyer-General,  to  be  sent  to  the 
General  Land  Office,  and  retaining  the  other ;  and  when  the 
survey  is  approved,  and  diagram  thereof,  together  with  the 
Surveyor-General's  certificate  as  to  improvements,  and  charac- 
ter of  the  vein  exposed,  the  claimant  to  pay  to  the  receiver  the 
price  of  the  claim.  The  register  and  receiver  to  examine  the  tes- 
timony filed  by  the  claimant,  showing  the  applicability  of  miners' 
rules  in  reference  to  the  extent  of  the  claim,  which  testimony  is 
to  be  reduced  to  writing,  and  filed  with  the  claimant's  application 
in  the  register's  office  ;  also  to  examine  the  returns  of  survey 
approved  by  the  Surveyor-General,  and  filed  by  the  claimant. 

Receiver  to  receive  from  the  claimant  the  price  of  the  claim 
on  his  filing  with  the  i*egister  and  receiver  the  approved  plat 
and  certificate  of  the  Surveyor-General,  as  to  the  value  of  im- 
provements and  character  of  vein  exposed,  based  on  the  testi- 
mony of  two  reliable  witnesses. 

'1  he  register's  diagram  of  the  claim  being  filed  by  the  claim- 
ant, tlic  register  shall  publish  a  notice  in  a  newspaper  nearest 
the  claim,  naming  the  mine,  claimant,  adjoining  claimant,  dis- 
trict, and  county,  informing  the  public  that  application  has  been 
made  £or  a  patent.  The  register  will  post  the  notice  in  his 
office  for  ninety  days,  ami  on  the  publisher  presenting  his  ac- 
count to  the  register,  immediately  on  the  expiration  of  the  ninety 
days  he  will  transmit  it  to  the  Surveyor-General;  and  on  the 
receipt  fnnn  the  claimants  of  the  Surveyor-General's  certificate 
of  the  improvements  on  tin;  claim,  together  with  plat  and  other 
evidence  of  the  survey  approved,  also  the  receiver's  receipt  for 


§  13  THE    FIRST   MINING    ACT.  19 

the  payment  for  the  claim,  the  register  will  transmit  the  same, 
with  proof  indorsed  by  the  register  and  receiver  as  satisfactory, 
to  the  Commissioner  of  the  General  Land  Office  for  patent."  * 

"Surveyor- General's  duty  when  no  adverse  claim  is  filed,  proof 
furnished  that  the  diagram  and  notice  had  been  posted  for 
ninety  days,  and  on  receiving  also  from  the  register  the  ac- 
count of  the  publisher  of  the  notice. 

"The  Surveyor-General,  when  applied  to  by  the  claimant  for 
the  survey  of  his  claim,  shall  estimate  the  expense  of  the  survey, 
platting,  and  notice,  and  when  a  certificate  of  deposit  is  filed 
with  him  by  the  claimant,  he  shall  order  the  survey  to  be  made 
and  transmit  the  certificate  of  deposit  to  the  General  Land 
Office.  When  the  returns  of  survey  are  made  to  the  Surveyor- 
General's  office,  he  will  approve  the  same,  hand  the  necessary 
evidence  thereof  to  the  claimant,  to  be  filed  by  him  in  the  reg- 
ister's and  receiver's  office,  for  examination  and  final  prepara- 
tion of  patent  certificate  by  the  register  for  transmission  to  the 
Commissioner  of  the  General  Land  Office.  The  Surveyor- 
General  will  also  transmit  returns  of  the  survey  to  the  commis- 
sioner, with  the  account  of  the  surveyor,  and  that  of  the  pub- 
lishers of  the  notice  for  direct  payment  from  the  United  States 
Treasury  to  the  parties  entitled,  as  in  case  of  payments  made 
out  of  the  funds  deposited  under  tenth  section  of  the  Act  of 
Congress,  approved  May  30th,  1862,  and  joint  resolution  of 
June  1st,  1864."  2 

§  13.  What  a  patent  conveyed. — Every  patent  issued  un- 
der the  act  expressly  conveyed  to  the  patentee  the  surface-ground 
embraced  by  the  exterior  boundaries  of  the  survey  of  his  claim, 
together  with  the  right  to  follow  the  vein  or  lode  along  the 
course  to  the  number  of  feet  expressed  in  the  patent,  with  its 
dips,  angles,  and  variations,  to  any  depth,  although  the  lode 
should,  in  its  dip  or  course,  leave  the  surface-ground  patented, 
and  enter  the  land  adjoining.  The  restriction  was  to  one  vein 
or  lode.  None  of  the  patentees'  rights  existing  under  this  sec- 
tion were  affected  by  its  i-epeal.'3     In  all  applications,  therefore, 

1  Instructions  June  25th,  18G7;  Copp's  U.  S.  Mining  Decisions,  247. 

2  Ibid. 

s  Act  of  1872,  Sees.  9,  12,  1G;  17  U.  S.  Stats.  92. 


20  INTRODUCTORY.  §  14 

pending  at  the  date  of  the  passage  of  the  Act  of  1872,  although 
the  patents  were  not  issued  till  afterward,  they  conveyed  the 
surface-ground  embraced  by  the  interior  boundaries  of  the  sur- 
vey, and  the  right  to  follow  the  vein  as  above  indicated,  and  also 
all  other  veins,  lodes,  or  ledges,  throughout  their  entire  depth,  the 
top  or  apex  of  which  lay  inside  of  such  surface-lines  extended 
downward  vertically,  although  such  other  veins,  lodes,  or  ledges, 
might  so  far  depart  from  a  perpendicular  in  their  course  down- 
ward as  to  extend  outside  the  vertical  side-lines  of  the  surface- 
location,  provided,  that  their  right  of  possession  to  such  out- 
side parts  of  such  other  veins,  lodes,  or  ledges  was  confined  to 
such  portions  thereof  as  lay  between  vertical  planes  drawn 
downward  through  the  end-lines  of  their  location,  so  continued 
in  their  direction  that  such  planes  would  intersect  such  ex- 
terior parts  of  such  veins,  lodes,  or  ledges  ;  no  right  being 
granted,  however,  to  the  claimant  of  a  vein  or  lode  which  ex- 
tended in  its  downward  course  beyond  the  vertical  lines  of  his 
claim,  to  enter  upon  the  surface  of  a  claim  owned  or  possessed 
by  another. 

The  Act  of  1872  enlarged  those  rights,  and  in  the  applications 
for  patents  pending  at  the  date  of  its  passage,  May  10th,  1872, 
authorized  the  issuance  of  patents  upon  such  applications, 
which  patents,  in  addition  to  granting  to  the  patentee  the  right 
to  follow  the  particular  vein  or  lode  along  its  course,  although 
it  might  enter  the  land  adjoining,  to  the  number  of  feet  ex- 
pressed  in  the  patent  along  the  course  thereof,  and  to  any  depth, 
also  gave  such  patentee  the  right  to  follow  all  other  veins, 
lodes,  or  ledges,  the  top  or  apex  of  which  should  lie  within  the 
exterior  boundaries,  if  the  same  were  not  adversely  claimed  on 
May  10th,  1872,  only  to  such  extent,  however,  along  the  course 
thereof  as  might  be  embraced  by  such  external  boundaries,  but 
to  any  depth  ;  and  furthermore,  the  act  granted  the  exclusive 
right  <»i  possession  to  the  surface-ground  embraced  by  the  sur* 
vey.1 

§  14.  Diagram,  notice,  survey,  and  patent. — The  third 
section,   which   was   also  repealed   by  the  Act  of  1872,  read  as 

1  In  re  Hercules  Lode  ;  Decision  of  Commissioner,  Dec.  2Gth,  1872  ;  Copp's  U. 
S.  Mitring  I  (eel   long,  154. 


§  14  THE    FIRST    MINING    ACT.  21 

follows :  "  Sec.  3.  That  upon  the  filing  of  the  diagram  as  pro- 
vided in  the  second  section  of  this  act,  and  posting  the  same  in 
a  conspicuous  place  on  the  claim,  together  with  a  notice  of  in- 
tention to  apply  for  a  patent,  the  register  of  the  land  office  shall 
publish  a  notice  of  the  same  in  a  newspaper  published  nearest 
to  the  location  of  said  claim,  and  shall  also  post  such  notice  in  his 
office  for  the  period  of  ninety  days  ;  and,  after  the  expiration  of 
said  period,  if  no  adverse  claim  shall  have  been  filed,  it  shall  be 
the  duty  of  the  Surveyor-General,  upon  application  of  the  party, 
to  survey  the  premises  and  make  a  plat  thereof,  indorsed  with 
his  approval,  designating  the  number  and  description  of  the 
location,  the  value  of  the  labor  and  improvements,  and  the 
character  of  the  vein  exposed ;  and  upon  the  payment  to  the 
proper  officer  of  five  dollars  per  acre,  together  with  the  cost  of 
such  survey,  plat,  and  notice,  and  giving  satisfactory  evidence 
that  said  diagram  and  notice  have  been  posted  on  the  claim 
during  said  period  of  ninety  days,  the  register  of  the  land  office 
shall  transmit  to  the  General  Land  Office  said  plat,  survey,  and 
description  ;  and  a  patent  shall  issue  for  the  same  thereupon. 
But  said  plat,  survey,  or  description  shall  in  no  case  cover  more 
than  one  vein  or  lode,  and  no  patent  shall  issue  for  more  than 
one  vein  or  lode,  which  shall  be  expressed  in  the  patent  issued.'' 1 

Notice. — The  notice  required  in  the  third  section  was  re- 
quired to  state  the  name  of  the  claimant,  the  name  of  the  mine,  the 
name  of  adjoining  claimants  on  each  end  of  the  claim,  the  dis- 
trict and  county  in  which  the  mine  Avas  situated,  informing  the 
public  that  application  had  been  made  for  a  patent  for  the  same. 
If  no  adverse  claim  was  filed,  and  satisfactory  proof  was  pro- 
duced that  the  diagram  and  notice  had  been  posted  in  the 
manner  and  for  the  period  stipulated  in  the  statute,  it  became  the 
duty  of  the  Surveyor-General  to  proceed  in  the  manner  pointed 
out  in  the  section.2 

The  register  was  to  give  the  notice  required  for  the  period  of 
ninety  days,  and  adverse  claimants  had  the  entire  ninety  days 
in  which  to  file  their  claims ;  and  immediately  upon  the  expira- 
tion of  the  ninety  days,  if  there  had  been  no  adverse  claim 
filed,  the  claimant  had  the  right  to  apply  to  the  Surveyor-General 

i  Act  of  July  26th,  1866,  14  U.  S.  Stat.  252. 

2  Instructions  Jan.  14th,  1867;  Zabriskie's  L.  L.  200;  Copp's  Decis.  239. 


22  INTRODUCTORY.  §  15 

for  a  survey,  and  upon  its  being  approved,  and  the  land  paid 
for  and  the  proper  papers  forwarded  to  the  Commissioner,  he 
was  entitled  to  his  patent.  Ninety  days  were  given  in  which  to 
file  adverse  claims.  They  were  required  to  be  filed  within  that 
period.1 

Where  there  was  no  evidence  that  a  proper  notice  or  diagram 
was  posted  on  the  claim,  and  the  affidavits  that  were  filed  did  not 
describe  the  notice  or  diagram,  and  did  not  state  when  they  were 
posted  up,  this  was  held  not  to  be  a  compliance  with  the  statute. 

There  was,  besides,  no  proof  that  the  published  notice  agreed 
with  the  description  in  the  application,  and  the  application  was 
rejected.2 

§  15.  Survey. — As  preliminary  to  the  survey,  the  Surveyor- 
General  was  required  to  estimate  the  expense  of  surveying  and 
platting,  and  ascertain  from  the  register  the  cost  of  the  publication 
of  notice,  the  amount  of  all  of  which  was  to  be  deposited  by  the 
applicant  for  survey  with  any  assistant  United  States  Treasurer, 
or  designated  depository  in  favor  of  the  United  States  Treasurer, 
to  be  passed  to  the  credit  of  the  fund  created  by  "  individual 
depositors  for  the  surveys  of  the  public  lands."  Duplicate 
certificates  of  such  deposits  were  to  be  filed  with  the  Surveyor- 
General  for  transmission  to  the  General  Land  Office,  as  in  the 
case  of  deposits  for  surveys  of  public  lands,  under  the  tenth 
section  of  the  Act  of  Congress  approved  May  30th,  1862,  and 
joint  resolution  of  July  1st,  1864. 

Alter  the  survey  thus  paid  for  was  duly  executed,  and  the 
plat  thereof  approved  by  the  Surveyor-General,  designating  the 
number  and  the  description  of  the  location,  accompanied  by  his 
official  certificate  of  the  value  of  the  labor  and  improvements, 
and  character  of  the  vein  exposed,  with  the  testimony  of  two  or 
more  reliable  persons  cognizant  of  the  facts  on  which  his  certifi- 
cate  was  founded  as  to  the  value  of  the  labor  and  improvements, 
thi'  party  claiming  filed  the  same  with  the  register  and  re- 
ceiver,  and    thereupon  paid  to  the  receiver  five  dollars  per  acre 

1  In  re-  Flagstaff  Lode,  Decision  of  Secretary,  March  14th,  1872;  Copp's  U.  S. 
Mining  l decisions',  ?'-'. 

-In  re  New  idria  Mining  Company's  Application;  " McGarrahan's  Case," 
Decision  of  A.cting  Secretary,  Aug,  4th,  L871;  Opinion  of  Assistant  Attorney. 
( ..  neral,  -Inly  21st,  1871 ;  Copp's  U.  S.  Mining  Decisions,  47-50. 


§  16  THE    FIRST   MINING    ACT.  23 

for  the  premises  embraced  in  the  survey,  and  filed  with  those 
officers  a  triplicate  certificate  of  deposit,  showing-  the  payment 
of  the  cost  of  survey,  plat,  and  notice,  with  satisfactory  evi- 
dence, which  was  the  testimony  of  at  least  two  credible  witnesses, 
that  the  diagram  and  notice  were  posted  on  the  claim  for  a 
period  of  ninety  days  as  required  by  law.  Thereupon,  it  was 
the  duty  of  the  register  to  transmit  to  the  General  Land  Office 
the  plat,  survey,  and  description,  with  the  proof  indorsed  as 
satisfactory  by  the  register  and  receiver,  so  that  a  patent  might 
issue  if  the  proceedings  were  found  regular ;  but  neither  the 
plat,  survey,  description,  nor  patent  was  allowed  to  issue  for 
more  than  one  vein  or  lode.1 

The  unity  of  the  surveying  system  was  to  be  maintained  by 
extending  over  the  mining  districts  the  rectangular  method,  at 
least  so  far  as  township  lines  were  concerned.  The  contemplated 
surveys  of  the  mineral  lands  were  to  be  made  by  district  deputies, 
under  contracts,  according  to  the  mode  adopted  in  the  survey 
of  the  public  lands  and  private  land  claims,  embracing  in  them 
all  such  veins  or  lodes  as  might  be  called  for  by  claimants 
entitled  to  have  them  surveyed. 

In  consideration  of  the  very  limited  scope  of  surveying  in- 
volved in  each  mining  claim,  the  per  mileage  allowed  by  law 
was  not  considered  adequate  to  secure  the  services  of  scientific 
surveyors,  and  hence  the  necessity  of  resorting  to  a  per  diem 
principle,  it  being  thought  the  most  equitable  under  the  circum- 
stances. 

The  Surveyor-General  was,  therefore,  authorized  to  commis- 
.  sion  resident  mineral  surveyors  for  different  districts,  where, 
isolated  from  each  other,  and  absolutely  inconvenient  for  one 
surveyor  promptly  to  attend  to  the  several  calls  for  surveying 
in  such  localities,  the  compensation  not  to  exceed  $10  per  diem, 
including  all  expenses  incident  thereto.  Bonds  in  the  sum  of 
$10,000  were  required  from  such  surveyors.2 

§  16.  Posting  the  notice  of  application  to  make  the 
entry. — The  details  of  the  instructions  under  this  section,  and 
of  the  section  itself,  were  to  be  strictly  attended  to. 

1  Instructions  January  14th,  1867;  Zabriskie's  L.  L.  200;  Copp's  Decis.  239. 

2  Ibid. 


24  INTRODUCTORY.  §  17 

The  application  to  the  Surveyor-General  to  make  the  survey 
after  the  register  and  receiver  had  acted,  was  to  be  made  by 
the  claimant  in  writing,  the  necessary  proof  made  before  him 
of  the  work  and  its  value,  and  payment  made  of  the  money  for 
the  survey  by  the  deposit.  When  the  survey  was  approved  by 
him,  and  his  certificate  given  to  the  claimant,  based  upon  the 
testimony  of  two  witnesses,  the  certificate  was  to  be  filed  with 
the  register  and  receiver,  into  whose  hands  the  case  came  for 
the  second  time.  Evidence  was  then  given  before  them  of  the 
posting  of  the  notice  and  diagram  for  ninety  days  on  the  claim, 
by  two  witnesses.  Five  dollars  per  acre  was  then  paid  to  the 
receiver  for  the  quantity  of  land  embraced  in  the  survey.  The 
two  officers  then  transmitted  to  the  General  Land  Office  "  the 
plat,  survey,  and  description,  with  the  proof  indorsed  as  satis- 
factory." It  was  not  stated  whether  the  written  application  of 
the  claimant  was  to  be  transmitted  or  not.  The  patent  was 
then  issued  "  if  the  proceedings  were  found  regular  "  for  the 
limited  quantity  of  one  vein  or  lode.1 

§  17.  Effect  of  irregularities — Notice  of  application — 
Requisites. — The  purpose  of  the  diagram  and  notice  was  analo- 
gous to  a  legal  summons,  by  which  any  and  all  parties  are  noti- 
fied that  unless  within  a  given  time  they  come  forward  and  de- 
fend any  rights  or  interest  they  may  have  in  certain  premises, 
their  rights  to  do  so  shall  become  barred,  and  judgment  rendered 
for  claimant. 

The  diagram  and  notice  should,  therefore,  have  been  carefully 
prepared  :  any  deception  in  the  notice  might  have  been  a  cause 
for  the  rejection  of  the  claim.'2  But  immaterial  discrepancies, 
not  likely  to  deceive  parties  to  be  notified,  have  been  disre- 
garded.3 

Enformal  and  irregular  applications  were  not  countenanced. 
A  case  presented  the  following  irregularities  :  the  notice  was 
published  nearly  a  month  prior  to  the  date  of  the  application, 
and  lor  the  same  length  of  time  before  the  notices  and  diagrams 

1  Kale's  Mining  ( Slaima  and  Water  Rights,  366,  367. 

-In  re  Flagstaff  Lode,  Decision  of  Commissioner,  December  8th,  1871;  Copp's 
Decia.  75. 
:;in  re  Flagstaff  Lode,  Decision  of  Secretary,  Nov.  24th,  1.S71 ;  Ibid.  71. 


§  18  THE    FIKST    MINING    ACT.  25 

were  posted  on  the  claim  and  in  the  office  of  the  register,  and 
not  during  the  ninety  days  of  posting  notices ;  the  description 
and  location  of  the  premises  as  given  in  the  notices  and  diagrams 
were  meager  and  incorrect ;  the  evidence  submitted  by  the  ap- 
plicant showed  that  he  had  the  record  title  to  240  linear  feet 
only,  whereas  the  application  was  for  1,200  feet.  The  office 
declined  to  issue  a  patent  under  these  circumstances,  and  rejected 
the  application.  The  applicant  subsequently  made  a  motion 
for  a  rehearing,  and  filed  an  abstract  of  title  showing  that  at 
the  time  of  the  motion  he  had  the  record  title  to  1,200  linear 
feet  of  the  lode,  but  as  the  applicant  had  not  become  sole  owner 
until  eleven  months  after  the  application  for  patent,  the  motion 
for  rehearing  was  overruled.1 

If  the  proceedings  were  irregular  by  a  defect  in  the  applica- 
tion, either  in  the  allegations  on  substantial  points  in  the  failure 
to  prove  the  necessary  work  and  expenditure,  the  posting  and 
advertisement,  the  proof  of  the  local  laws,  the  compliance  with 
them,  the  diagram  and  survey,  and  the  payment  for  the  land 
and  expenses,  the  amplication  for  the  patent  was  rejected,  and 
the  applicant  left  without  evidence  of  title.  These  were  the 
equities  to  be  maintained  before  the  Government  parted  with 
the  fee.2 

§  18.  Fees  of  surveyors. — The  per  diem  allowance  to  dep- 
uty surveyors,  including  all  expenses  of  assistants  for  surveys  of 
mineral  claims,  (see  Instructions  Jan.  14th,  1867)  having  been 
found  inadequate,  and  in  consequence,  parties,  in  order  to  induce 
deputies  to  make  the  surveys,  found  it  necessary  to  pay  ad- 
ditional sums  as  on  private  account,  the  surveyors-general  were 
authorized  to  increase  the  maximum  per  diem  allowance  accord- 
ing to  the  difficulty  of  the  service,  taking  care,  however,  to  have 
the  work  performed  on  the  most  economical  scale  by  skillful  and 
responsible  surveyors,  and  in  no  case  to  exceed  a  maximum  of 
twenty  dollars  per  day.  In  each  case  where  over  ten  dollars 
per  day  were  allowed,  the  reasons  showing  the  necessity  thereof 

1  In  re  Red  Warrior  Lode,  Decision  Acting  Commissioner,  June  18th,  1873; 
Copp's  U.  S  Mining  Decisions,  204,  206;  Decision  of  Commissioner,  October  Sth, 
1873;  Ibid. 

2  Yale's  Mining  Claims,  3GG,  3G7. 


26  INTRODUCTORY.  §§  19-20 

were  required  to  be  stated  in  the  contract  and  then  reported  to 
the  General  Land  Office ;  and  no  extra  compensation  was  to  be 
exacted  or  received  by  the  deputy  under  penalty  of  forfeiting 
the  contract,  and  exclusion  from  the  public  surveying  service.1 

§  19.  Size  of  locations-^-Adjustment  of  surveys. — The 

fourth  section  provided  :  "  Sec.  4.  That  when  such  location  and 
entry  of  a  mine  shall  be  upon  unsurveyed  lands,  it  shall  and 
may  be  lawful,  after  the  extension  thereto  of  the  public  surveys, 
to  adjust  the  surveys  to  the  limits  of  the  premises,  according  to 
the  location  and  j>ossession  and  plat  aforesaid,  and  the  Surveyor- 
General  may,  in  extending  the  surveys,  vary  the  same  from  a 
rectangular  form  to  suit  the  circumstances  of  the  country,  and 
the  local  rules,  laws,  and  customs  of  miners  :  Provided,  That  no 
location  hereafter  made  shall  exceed  two  hundred  feet  in  length 
along  the  vein  for  each  locator,  with  an  additional  claim  for 
discovery  to  the  discoverer  of  the  lode,  with  the  right  to  follow 
such  vein  to  any  depth,  with  all  its  dips,  variations,  'and  angles, 
together  with  a  reasonable  quantity  of  surface  for  the  conve- 
nient working  of  the  same  as  fixed  by  local  rules  :  And  provided 
further,  That  no  person  may  make  more  than  one  location  on 
the  same  lode,  and  not  more  than  three  thousand  feet  shall  be 
taken  in  any  one  claim  by  any  association  of  persons."2 

§  20.  Duties  of  deputy-surveyors. — The  deputy-surveyors 
were  required  to  be  scientific  men,  capable  of  examining  and  re- 
porting fully  on  every  lode  they  surveyed,  and  to  bring  in  dupli- 
cate specimens  of  the  ore,  one  of  which  was  ordered  to  be  sent  to 
the  ( reneral  Land  Office,  and  the  other  the  Surveyor-General  was 
authorized  to  keep,  to  lie  ultimately  turned  over  with  the  sur- 
viving archives  to  the  State  authorities. 

The  surveyors  of  mineral  claims,  whether  on  surveyed  or 
unsurveyed  lands,  were  ordered  to  designate  those  claims  by  a 
progressive  series  of  numbers,  beginning  with  No.  37,  so  as  to 
avoid  interference  in  that  respect  with  the  regular  sectional 
series  <>l  numbers  in  each  township;  and  were  to  designate  the 
four  corners  of   each  claim,  where  the  side-lines  of  the  same 

1  in  Lug,  siii,  1870;  <'nji|>'s  r.  s.  Mining  Decisions,  2D3. 

a  An  <,f  July  26th,  1866,  n  D".  S,  Stat.  252. 


§  21  THE   FIRST   MINING   ACT.  27 

were  known,  so  that  such  corners  could  be  given  by  either 
trees,  if  any  were  found  standing  in  place,  or  any  corner-rocks 
existing  in  place,  or  posts  might  be  set  diagonally,  and  deeply 
imbedded,  with  four  sides  facing  adjoining  claims,  sufficiently 
flattened  to  admit  of  inscriptions  thereon  ;  but  where  the  cor- 
ners were  unknown,  it  was  sufficient  to  place  a  well-built,  solid 
mound  at  each  end  of  the  claim.  The  beginning  corner  of 
the  claim  nearest  to  any  corners  of  the  public  surveys  was  to 
be  connected  by  course  and  distance,  so  as  to  ascertain  the  rel- 
ative position  of  each  claim  in  reference  to  township  and  range 
when  the  same  had  been  surveyed ;  but  in  those  parts  of  the 
surveying  district  where  no  such  lines  had  been  extended,  it 
was  the  duty  of  surveyors-general  to  have  the  same  surveyed 
and  marked,  at  least  so  far  as  standard  and  township  lines  were 
concerned,  at  the  per  mileage  allowed,  so  as  to  embrace  the 
mineral  region,  and  to  connect  the  nearest  corners  of  the  min- 
eral claims  with  the  corners  of  the  public  surveys.  If  found 
impracticable  to  establish  independent  base  and  meridian  lines, 
or  to  extend  township  lines  over  the  region  containing  mineral 
claims  required  to  be  surveyed  under  the  law,  then  there  was 
to  be  surveyed,  in  the  first  instance,  such  a  claim,  the  initial 
point  of  which  would  start  either  from  a  confluence  of  waters, 
or  such  natural  and  permanent  objects  as  would  unmistakably 
identify  the  point  of  the  beginning  of  the  survey  of  the  claim, 
upon  which  other  surveys  would  depend.1 

§  21.  Following  the  vein  to  any  depth. — An  applicant  for 
a  patent  under  the  Act  of  I860  might  include  surface-ground  ly- 
ing oh  either  or  both  sides  of  the  vein,  as  part  of  his  claim,  or 
apply  for  a  patent  for  the  vein  alone.  His  rights  upon  the  vein 
and  in  working  into  it  were  precisely  the  same,  whatever  might  be 
the  form  of  his  surface-ground,  or  whether  he  had  any  or  none. 
His  end-lines  and  the  distance  between  them  were  the  same  at 
all  depths  as  upon  the  surface,  no  matter  whether  the  position 
of  the  vein  was  vertical,  or  whether  it  dipped  at  a  less  or  great- 
er  angle.  This  resulted  directly  from  the  right  granted  to  the 
miner  by  all  the  local  mining  customs,  as  well  as  by  the  national 

1  Instructions  Jan.  14th,  1867  ;  Zabriskie's  L.  L.  200;  Copp's  Decis.  239. 


28  INTRODUCTORY.  §  22 

mining  act,  of  following  the  vein  with  all  its  dips,  angles,  and 
variations. 

The  Congressional  enactment  adopted  in  this  respect  the  pro- 
visions of  the  mining  customs,  subordinating  the  rights  of  a 
patentee  in  respect  to  the  surface-ground  to  the  more  important 
rights  in  respect  to  the  vein,  "granting  the  right  to  follow  the 
latter,  with  all  its  dips,  angles,  and  variations,  although  it  might 
enter  the  land  adjoining,  and  requiring  the  adjoining  land  to  be 
sold  subject  to  this  condition. 

If  a  vein  descends  vertically  into  the  earth,  no  controversy 
"will  arise.  The  measurement  at  the  bottom  is  the  same  as  at 
the  surface.  Suppose  the  cavity  to  have  been  made,  and  by  a 
convulsion  of  nature  the  vein  is  swung  from  a  vertical  position 
to  that  of  an  angle,  the  first  cavity  in  its  last  position  represents 
the  rights  of  a  miner  where  the  vein  dips  or  inclines.1 

§  22.  Mode  of  survey — Quantity  and  restriction  to  one 
claim. — The  first  instructions  under  this  section  were  explicit 
except  on  three  points  : 

1st.  The  number  and  quantity  allowed  each  person  or  associ- 
ation before  the  passage  of  the  act. 

2d.  The  number  of  persons  Avho  constituted  an  association 
under  the  act,  to  take  up  3,000  feet. 

3d.  Whether  an  indefinite  number  of  claims  could  be  taken 
up  by  the  same  individual  by  complying  with  the  act,  on 
different  lodes. 

The  first  omission  was  partly  supplied  by  the  law  itself,  as  the 
quantity  was  referred  to  the  local  laws  of  the  district,  which 
governed  before  the  law  was  passed. 

The  second  by  the  subsequent  interpretation  which  the  Com- 
missioner put  upon  the  act. 

The  third  point  was  left  to  the  General  Law,  as  the  act  con- 
tained  do  restriction  as  to  the  number  of  claims  by  an  individual 
or  association,  excepl  that  not  more  than  one  should  be  taken 
up  on  the  same  lode.  The  mining  laws  limited  the  number  of 
claims  by  location  to  one  in  the  district,  with  an  additional 
quantity  to  the  discoverer  ;  by  the  General  Law,  the  number  by 

1  In  r«-   Mount  joy   Lode,   Decision  of  Commissioner,  Jan.  7th,  1870;  Copp's  U. 
S.  Mining  Decisions,  27, 


§  23  THE    FIRST    MINING    ACT.  29 

purchase  could  not  be  limited  by  the  district  laws  of  the  mines. 
The  pre-emption  laws  limit  the  right  to  one  location,  and  the 
declaration  of  the  claimant  made  under  oath  is  stringent  in  this 
respect.  This  act  followed  none  of  the  analogies  of  the  pre- 
emption laws  in  these  particulars. 

The  third  section  having  provided  that  the  plat,  survey,  and 
patent  should  in  no  case  cover  more  than  one  vein  or  lode,  and 
that  this  should  be  expressed  in  the  patent,  this  section  again 
declared  that  no  person  could  take  more  than  one  location  on  the 
same  lode. 

The  reasonable  quantity  of  surface  for  the  convenient  work- 
ing  of  the  claim  was  fixed  by  local  rules,  and  should  always 
have  included  sufficient  ground  for  mills,  workshops,  dwellings, 
stables,  drifting,  and  structures  for  manipulating  the  ores. 
Points  for  convenient  drainage  should  always  have  been  located 
with  the  claim,  in  anticipation  of  the  necessity  which  might 
arise.  The  incident  of  timber  was  secured  with  the  claim,  but 
unless  the  surface-survey  included  a  sufficient  quantity,  and 
there  was  timbered  land  in  the  vicinity,  a  pre-emption  claim 
should  have  been  located  in  connection  with  the  mining  claim,  as 
there  was  nothing  in  the  pre-emption  acts  prohibiting  an  entry 
to  a  lode  under  the  act,  in  addition  to  the  pre-emption  claim. 

The  limitation  of  quantity  under  this  act  superseded  all  dis- 
trict laws,  allowing  a  greater  quantity  than  200  feet  to  an  indi- 
vidual location.  The  district  laws  generally  limited  the  quan- 
tity fixed  upon  as  so  much  for  each  man,  and  partners  or  cor- 
porations could  only  take  up  a  number  of  feet  corresponding  to 
the  number  of  the  original  locators. 

§  23.   Deviation  from  the  rectangular  form  of  survey. — 

The  phrase,  "  circumstances  of  the  country,"  undoubtedly 
meant  the  physical  conformation  of  certain  localities  not  admit- 
ting of  lines  at  right  angles  in  the  location  and  description  of 
mining  claims.  There  were  no  local  rules  to  comply  with  res- 
pecting the  forms  of  the  claims  to  which  the  surveys  were  to  be 
adapted,  but  the  extent  and  location  of  claims  were  regulated  in 
many  instances  by  the  accidental  conformation  of  the  diggings 
and  claims  marked  out  with  reference  to  the  cardinal  points  or 
the  form  of  the  lines  comprising  the  boundaries.     In  lode-claims 


30  INTRODUCTORY.  §  24 

located  on  the  sides  of  hills  or  in  ravines,  the  regulation  is  in- 
dispensable, and  the  form  of  the  claim  must  take  the  shape 
of  the  country.1 

§  24.  Number  of  feet  located. — There  was,  after  the  pas- 
sage of  the  Act  of  1866,  no  authority  of  law  for  the  location  of 
more  than  1,200  feet  by  five  persons,  provided  they  were  dis- 
coverers, or  1,000  feet  if  claimed  simply  as  locators. 

Where  certain  applicants  had  applied  for  more,  a  patent 
was  refused,  but  they,  claiming  as  discoverers,  were  allowed  to 
take  1,200  feet  along  the  line  of  the  lode,  in  which  event  they 
were  instructed  to  have  their  monuments  moved  by  a  United 
States  deputy-surveyor,  and  the  plat  and  field-notes  amended 
accordingly,  a  re-survey  of  the  premises  being  held  not  neces- 
sary. They  were  also  given  the  option  of  making  re-locations 
under  the  Act  of  1872,  in  which  case  they  wGre  recpiired  to 
commence  de  novo,  after  filing  notice  of  location  with  the 
proper  local  officer,  the  proceedings  being  the  same  as  if  no 
previous  application  had  been  made.  In  this  event,  the  Surveyor- 
General  was  allowed  to  adopt  the  field-notes  of  survey  already 
made,  with  the  necessary  amendments  as  to  distances  along  the 
vein  and  corner  monuments,  thus  saving  the  applicants  the  ex- 
pense of  a  re-survey.2 

The  act  fixed  a  limit  for  claims  on  all  veins  or  lodes  from  and 
after  its  passage,  which  limit  could  not  be  exceeded,  no  matter 
what  the  local  regulations  allowed,  the  Congressional  maximum 
being  200  feet  along  the  course  of  the  lode  to  each  locator,  with 
an  additional  claim  of  200  feet  for  discovery,  and  fixed  3,000  feet 
as  the  utmost  extent  that  could  be  located  or  claimed  upon  the 
-.inn'  by  any  association  of  persons  after  the  26th  of  July, 
1866.  After  this  date  no  individual  in  any  district  could 
"  locate  :"  or  "  claim  "  more  than  200  feet  on  the  course  of  any 
Lode  discovered  thereafter  unless  he  was  the  discoverer,  when 
lie  could  take  an  extra  claim  of  200  feet,  and  not  more  than  3,000 
feet  could  thereafter  be  located  or  claimed  upon  any  one  vein 
by  any   association  of  persons,  and  to  locate  3,000  feet  of  such 

1  Yal<-'s  Mining  Claims  and  Wat  it  I  lights  in  California,  369,  370. 
-in  re  San  Xavier  Mine,  Decision  Commissioner,  July  10th,  1873;  Copp'sU.  S. 
Mining  Decisions,  209, 


§  24  TIIE    FIRST    MINING    ACT.  31 

lode  required  not  less  than  fourteen  bona  fide  locators  to  be 
associated  together,  each  taking  a  claim  of  200  feet,  with  200 
feet  additional  to  the  discoverer,  or  fifteen  locators  where  they 
claimed  without  regard  to  the  discovery  right.  In  making 
these  locations,  the  miners  had  the  option  of  taking  up  and  re- 
cording their  claims  either  as  segregated  individual  locations  of 
200  feet  each,  and  working  or  disposing  of  them  as  such,  or 
they  could  associate  together  and  locate  a  number  of  these 
claims  in  common,  provided  the  legal  maximum  of  3,000  feet 
was  not  exceeded,  after  the  26th  day  of  July,  1866.  This  statute 
did  not  fix  any  amount  of  work  or  expenditure  as  necessary  to 
hold  a  claim,  but  left  that  to  be  regulated  by  the  miners 
themselves.  It  did,  however,  prescribe  that  an  amount  of  not 
less  than  $1,000  should  be  expended  on  the  claim  as  one  of  the 
conditions  precedent  to  obtaining  a  patent?- 

Where  an  applicant  filed  affidavit  that  the  lode  was  discovered 
prior  to  the  passage  of  the  Act  of  1866,  and  the  record  evi- 
dence showed  it  was  not  located  till  after  the  passage,  the  rec- 
ord evidence  was  held  to  control,  and  the  act  governed  as  to 
amount  of  location;  and  where  3,000  feet  had  been  located  the 
monuments  were  ordered  removed  by  the  deputy  United  States 
surveyor  and  placed  at  the  four  corners  of  1,000  feet,  the  grant- 
ors having  claimed  by  virtue  of  discovery,  and  the  locators  be- 
ing only  four  in  number,  and  the  plat  and  field-notes  were 
ordered  to  be  amended  accordingly.2 

The  construction  first  placed  by  the  Land  Office  upon  the 
provisos  was  that  the  limitation  of  claims  in  the  aggregate  to 
3,000  feet  on  a  lode  to  any  person  or  association  was  wholly  pros- 
pective, and  related  entirely  to  claims  taken  up  after  the  date  of 
said  act,  leaving  the  parties  who  held  the  possessory  rights  to 
claims  previously  located,  although  in  excess  of  that  maximum, 
at  liberty  to  apply  for  and  receive  patents  therefor,  but  the 
Assistant  Attorney-General,  in  the  New  Idria  Case,3  had  advised, 

1  In  re  Helmick  Silver  Mining  Co.  Decision  of  Commissioner,  August  27th, 
1872;  Decision  Acting  Secretary,  September  4th,  1872;  Copp's  U.  S.  Mining 
Decisions,  136, 139. 

2  In  re  Dunkirk  Lode,  Decision  of  Commissioner,  Sept.  17th  and  Oct.  11th, 
1873;  Copp's  U.  S.  Mining  Decisions,  224. 

3  Decision  of  Assistant  Atty.-Gen.  July  21st,  1871;  Copp's  U.  S.  Mining 
Decisions,  57. 


32  INTRODUCTORY.  §  24 

and  the  Acting  Secretary  of  the  Interior  had  followed  the  ad- 
vice,1 and  held,  reversing  the  decision  of  the  Commissioner,  that 
although  the  local  law  allowed  in  mining  for  cinnabar  an  ap- 
propriation of  160  acres,  the  statute  limiting  the  claim  to  3,000 
feet  controlled,  and  that  Congress  did  not  intend  to  provide 
that  all  new  claims  originating  after  the  passage  of  the  act 
should  be  limited  to  the  3,000  feet  for  each  association,  and  at 
the  same  time  provide  that  claims  originating  before  its  passage 
should  be  entitled  to  more. 

Following  this  view,  the  office,  on  March  27th,  1872,2  refused 
and  declined  to  issue  patents  conveying  more  than  3,000  feet 
along  the  vein  or  lode,  whether  the  location  was  made  before  or 
after  the  date  of  the  Act  of  1866. 

The  last  proviso  of  this  section  limited  the  quantity  of  land 
that  could  be  appropriated  by  any  one  association  to  3,000  feet. 
Local  rules  when  conflicting  must  give  way  to  statutory  provis- 
ions.3 

1  Decision  of  Acting  Secretary,  August  4th,  1871;  Copp's  U.  S.  Mining  De- 
cisions, 47. 

2Decision  of  Commissioner,  March  27th,  1872;  Copp's  IT.  S.  Mining  Decisions, 
83. 

-Many  controversies  arose  in  regard  to  the  proper  construction  of  the  fourth 
section,  some  contending  that  under  it  a  company  formed  merely  for  mining 
purposes  and  locating  claims  could  take  3,000  feet  on  the  vein,  although  such 
company  or  association  might  be  composed  of  less  than  fourteen  individuals.  It 
was  held  by  the  Land  Office  that  the  manner  of  making  locations,  and  the  num- 
berof  feel  thai  could  he  taken  on  the  same  vein  or  lode  by  an  individual  or  an 
iation,  depended  upon  the  rules  and  customs  of  miners  of  the  respective 
districts,  the  Act  of  1866  in  no  respect  superseding  or  modifying  those  customs, 
except  wlare  they  authorized,  the  location  of  more  than  200  feet  on  the  same 
1  de  i\.  an ..  one  person,  ormorethan  3,000  feet  by  any  association  of  persons. 
!n  in  i  •  i  i  the  statute  restricted  and  reduced  locations  made  after  the  act 
to  the  above  named  quantities  respectively,  as  the  maximum  in  each  case.  And 
this  was  the  only  difference  existing  between  the  local  mining  regulations  and 
the  controlling  acl  "f  Congress. 

,\i,  individual  could  aot,  therefore,  locate  more  than  200  feet  on  the  same  lode. 
,,,,i  an  a  sociation  more  than  3,00C  feet,  no  matter  how  many  persons  might  be 
associated  together,  or  what  the  local  customs  prescribed.  Whether  a  company 
or  association  could  take  as  much  as  .".,000  feel  depended  upon  the  mining  regu- 
lations of  the  particular  district,  and  the  number  of  persons  associated  in  such 
company.  Individual  could  aot,  by  forming  themselves  into  companies,  locate 
a  greater  number  of  Eee1  to  each  person  than  could  be  done  by  each  acting  sep- 
arately, 'i  bey  mighl  Locate  as  a  company  or  an  association  at  the  rate  of  200 
to  each  individual  embraced  in  it,  with  an  additional  200  feet  to  the  discov- 
,  ,-, ., .  [f  ti,,-  local  ■  ii  torn  ■  permitted  that  much  to  be  taken,  until  3,000  feet  wer© 
Located,  after  which  no  additional  quantity  could  be  claimed  on  the  same  lodo 


§  25  THE    FIRST    MINING    ACT.  33 

§  25.  Adverse  claims  and  contests. — Section  6  (also  ex- 
pressly repealed)  provided  as  follows  :  "  Sec.  G.  That  when  any- 
adverse  claimants  to  any  mine,  located  and  claimed  as  aforesaid, 
shall  appear  before  the  approval  of  the  survey,  as  provided  in 
the  third  section  of  this  act,  all  proceedings  shall  be  stayed 
until  a  final  settlement  and  adjudication  in  the  Courts  of  com- 
petent jurisdiction  of  the  rights  of  possession  to  such  claim, 
when  a  patent  may  issue  as  in  other  cases." 

This  provision  was  intended  to  protect  the  rights  of  third 
parties  against  the  claim  of  the  applicant,  and  authorized  a  con- 
test before  the  proper  tribunals,  so  that  the  right  to  the  mine 
might  be  determined  between  the  claimant  and  the  contestant, 
and  the  patent  issue  to  the  proper  party. 

Under  our  land  system,  the  registers  and  receivers  of  the  Land 
Office  have  authority  to  determine  contests  between  two  or 
more  pre-emptors  claiming  the  same  quarter-section  of  land,  sub- 
ject to  the  decision  of  the  Commissioner,  and  an  appeal  from 
him  lies  to  the  Secretary  of  the  Interior.  So  far,  the  question 
belongs  to  the  Executive  Department,  and  the  decision  is  min- 
isterial, although  involving  judicial  questions.  These  decisions, 
however,  may  be  revised  by  the  judiciary  in  proper  cases,  and 
are  not  always  conclusive.  This  provision,  transferring  the  con- 
by  the  same  company,  whatever  might  be  the  number  of  its  members.  In  dis- 
tricts where  the  mining  regulations  limited  locations  to  less  than  200  feet  to 
each  individual,  or  less  than  3,000  feet  to  any  association  of  persons,  claimants 
were  restricted  accordingly,  such  regulations  remaining  in  full  force,  being, 
unaffected  by  the  act  of  Congress. 

These  remarks,  however,  applied  wholly  to  original  locations,  made  in  pursu- 
ance of  the  rules  and  regulations  of  miners  in  the  several  mining  districts. 
They  had  no  application  to  claims  in  the  hands  of  purchasers,  and  a  mining  claim 
of  3,000  feet  might  be  owned  and  controlled  by  an  association  of  less  than  four- 
teen persons,  where  possession  was  obtained  by  bona  fide  purchases  for  valua- 
ble consideration,  or  partly  by  purchase  and  partly  by  location,  there  being 
nothing  in  the  act  to  prevent  an  association  composed  of  any  number  of  indi- 
viduals from  holding  such  claim,  and,  upon  proper  application  and  proof, 
obtaining  a  patent  for  it. 

But  as  to  associations  or  companies,  formed  for  the  purpose  of  locating  claims, 
they  were  subject  to  the  limitations  of  the  fourth  section,  and  the  restriction  of 
200  feet  to  each  locator  could  not  be  evaded  by  forming  an  association.  The 
restriction  to  3,000  feet  was  applied,  whether  the  location  was  made  prior  or 
subsequent  to  the  date  of  the  act.  (Decision  of  Commissioner,  July,  18G9;  Za- 
briskie's  L.  L.  224;  Land  Office  Reports,  1868-9,  Report  of  Secretary  of  Interior, 
144;  Decision  Commissioner,  March  27th,  1872;  Copp's  M.  D.  83;  New  Idria  Case 
Opinion  of  Assistant  Att'y-Gen.  U.  S.  July  21st,  1871;  Copp's  M.  D.  51.) 

W.  C— 3. 


34  INTRODUCTORY.  §  25 

test  to  the    judiciary,  was  an    innovation    in    the    public    land 
system.     The  provision  was  defective  in  many  particulars. 

Under  the  third  section,  the  notice  of  the  filing  of  the  claim 
was  to  be  given  for  the  period  of  ninety  days,  and  after  the  ex- 
piration of  that  period,  if  no  adverse  claim  was  filed,  the  Sur- 
veyor-General made  the  survey  under  the  provision  of  this 
section,  the  adverse  claimant  might  appear  at  any  time  before  the 
approval  of  the  survey,  as  provided  in  the  third  section.  This 
extended  the  period  indefinitely  until  the  approval  of  the  survey, 
and  consecpiently,  the  contest  might  not  be  limited  to  the  ninety 
days  previously  specified.  As  the  surveyor  did  not  get  posses- 
sion of  the  case  till  the  lapse  of  the  ninety  days  after  the  proof 
had  been  made  in  the  register's  office,  this  additional  time  was 
necessarily  indefinite,  as  no  time  was  limited  within  which  the 
survey  was  to  be  made,  other  than  reasonable  convenience  de- 
manded. 

This  section  did  not  state  the  mode  of  contesting  the  applica- 
tion before  the  land  officers.  No  form  of  contest  was  indicated, 
whether  written  or  oral.  But  the  adverse  claim  was  to  be  by 
necessary  implication  in  writing,  setting  forth  substantially  the 
grounds  of  the  contest  by  claiming  the  mine  as  against  the  ap- 
plicant and  all  others.  All  proceedings  were  then  stayed,  both 
by  the  surveyor  and  the  land-owners,  "  until  a  final  settlement 
and  adjudication  in  the  Courts  of  competent  jurisdiction  of  the 
rights  of  possession  to  such  claim." 

What  were  the  Courts  of  competent  jurisdiction  was  a  matter 
left  tQ  be  determined  by  the  existing  laws.  No  Court  was  des- 
ignated as  the  competent  tribunal,  no  attempt  was  made  to 
confer  jurisdiction  upon  Federal  Courts,  as  Congress  might 
have  done,  nor  was  an  attempt  made  to  give  jurisdiction  to 
State  Courts,  which  already  possessed  it.  The  question  to  be 
determined  was  distinctly  stated,  viz :  the  rigid  of  possession. 
No  other  right  could  be  involved,  as  no  title  had  yet  passed  from 
the  I  'nit'  I  States.  The  Federal  Courts  had  already  jurisdiction 
to  determine  such  actions,  in  cases  brought  directly  before  them, 
under  the  Nevada  Judicial  Act  of  1865,  general  in  its  provisions 
to  all  ( lourts.  But  under  that  act  the  jurisdiction  was  over  the 
subject  ;  and  the  jurisdiction  over  the  parties  must  have  been 
derived  from  existing  laws  other  than  the  Act  of  18GG,  where 
the  paramount  title  was  in  the  United  States. 


§  26  THE    FIRST    MIXING    ACT.  35 

Where  the  applicant  claimed  under  a  derivative  title  from  the 
locators,  or  those  claiming  under  the  locators,  and  the  adverse 
claimant  derived  his  title  from  the  same  original  source,  it 
was  a  proper  case  of  contest,  and  the  Court  should  have 
awarded  the  patent  to  the  proper  party.  There  was  no  limita- 
tion in  the  act  within  which  the  contest  must  have  been  com- 
menced in  the  Courts  after  filing  the  adverse,  claim,  or  by  which 
a  party  could  be  coerced  to  a  speedy  trial.1 

§  26.  Proceedings  on  adverse  claims. — Should  a  party 
appear  as  an  "  adverse  claimant,"  as  contemplated  by  the  sixth 
section  of  the  act,  the  register  was  ordered  to  require  such  person 
to  show  by  proof  the  claim  or  interest  he  might  have  in  the  mine, 
and  if  satisfactory  to  the  register,  all  proceedings  were  to  be 
stayed  until  a  final  settlement  and  adjudication  should  be  had  in 
the  Courts.  But  in  case  the  adverse  claimant,  after  proceedings 
had  been  stayed,  failed  to  institute  action  in  the  Courts,  either 
pending  or  at  their  next  ensuing  session,  with  a  view  to  a  final 
adjustment  of  the  claims,  the  register  was  ordered  to  proceed 
with  the  case  as  if  no  objection  had  been  filed. 

The  sufficiency  of  the  adverse  claim  was  a  matter  expressly 
referred  to  the  local  Courts  by  the  statute,  but  the  land  officers 
were  to  be  satisfied  that  the  opposing  claim  was  such  as  was 
contemplated  by  the  sixth  section.  They  were  not  to  suffer  the 
forms  of  law  to  be  fraudulently  used  by  pretended  claimants, 
having  in  fact  no  rights  worthy  of  investigation  in  the  Courts. 
For  instance,  if  it  appeared  that  the  adverse  claim  relied  upon, 
related  to  a  settlement  claimed  under  the  Pre-emption  or  Home- 
stead Laws  of  the  United  States,  it  would  have  been  decided 
not  to  be  such  a  claim  as  was  to  be  referred  to  the  judicial  tri- 
bunals for  determination,  and  upon  the  filing  of  which  the  pro- 
ceedings were  to  be  stayed,  and  the  case  suspended  to  await 
trial  in  Court,  these  tribunals  having  no  jurisdiction  of  claims 
arising  under  the  Pre-emption  and  Homestead  Laws. 

The  adverse  claim  must  have  been  one  arising  under  the  local 
customs  and  rules  of  miners.  The  claimant  was  required  to  file 
an  affidavit  stating  fully  the  nature  of  his  claim,  and  if  the  facts 

1  Yale's  Mining  Claims  and  Water  Rights,  372,  373.  379. 


36  INTRODUCTORY.  §  27 

disclosed  present  opposing  interests  under  these  regulations,  or 
the  local  laws  of  the  State  or  Territory,  the  proceedings  were 
to  be  stayed ;  after  which,  it  became  the  duty  of  the  party  out 
of  possession  to  carry  the  case  into  the  Courts,  and  have  his 
rights  judicially  determined.  The  language  of  the  second  sec- 
tion, "  having  previously  occupied  and  improved  the  same,"  did 
not  refer  to  an  occupancy  at  some  remote  period.  It  meant  an 
occupancy  continuing  up  to  the  date  of  the  application  for  a 
patent,  otherwise  the  mine  could  not  be  said  to  be  one  "  in  re- 
gard to  whose  possession  there  was  no  controversy  or  opposing 
claim."  The  very  fact,  therefore,  of  the  applicant  being  out  of 
possession,  and  an  adverse  party  in  possession,  showed  the  claim 
to  be  one  for  adjudication  in  the  Courts  before  it  could  be  dis- 
posed of  in  the  Land  Office.  Hence,  it  was  the  duty  of  all 
applicants  under  the  Mining  Act  to  state  in  their  applications 
whether  they  were  occupying  the  premises  for  which  a  patent  was 
asked ;  and  if  not,  whether  an  adverse  party  was  in  possession. 
If  the  latter  was  the  case,  the  party  was  notified  that  an  appli- 
cation for  a  patent  was  made,  in  order  that  he  might  file  an 
affidavit  of  his  claim,1  and  the  case  was  then  suspended  for  ac- 
tion in  the  Courts. 

§  27.  Miscellaneous. — The  register  was  ordered  to  enter 
claims  under  the  act  in  separate  tract-books  from  those  used 
for  agricultural  lands — dividing  the  books  into  townships  and 
ranges,  allowing  about  eight  pages  to  each  township.  A  new 
series  of  numbers  was  ordered  to  be  commenced — beginning 
with  No.  1,  and  continued  in  regular  order.  As  no  special 
fee  was  provided  for,  registers  and  receivers  were  allowed 
one  per  cent,  each  on  amount  of  purchase-money,  as  in  cash 
sales.  The:  money  received  was  to  be  accounted  for  in  the 
receiver's  returns  as  cash  received  from  sale  of  mineral  claims.2 

W'liei-e  the  rules  of  miners  did  not  permit  ground  to  be  occu- 
pied,  except  the  surface  of  the  vein  or  lode,  the  claims  presented 
might  contain  Less  than  an  acre  of  ground.  In  such  cases,  the 
Land  Office  does  not  deal  with  a  fraction,  and  the  price  of  five 

1  in  itructions  July,  1869;  Zabriskie's  I-.  L.  239. 

-  [nstructions  June  25th,  L867;Copp'a  U.S.  Mining  Decisions.  245;  Instructions 
July.  1869;  Zabriskie's  L  L.  239. 


§  27  THE    FIRST   MINING    ACT.  37 

dollars  was  to  be  paid  for  the  same.  If  the  area  exceeded  that 
quantity,  ten  dollars  ;  if  more  than  two  acres,  fifteen  dollars,  and 
so  on.  In  applications  for  mineral  claims  it  was  necessary, 
where  a  claim  contained  less  than  one  acre,  that  the  agreement 
expressed  should  be  to  pay  five  dollars  for  the  claim.1 

1  Instructions  June  25th.  1867;  Copp's  U.  S.  Mining  Decisions,  245. 


38  RESERVATIONS    AND   EXCEPTIONS.  §  28 


CHAPTEE    IL 

RESERVATIONS  AND  EXCEPTIONS  OF  MINERAL  LANDS  IN  GRANTS 
BY  THE  GOVERNMENT. 

§  28.  Mineral  lands  reserved. 

§  29.  Mineral  lands  in  certain  States  not  excepted. 

§  30.  Exception  from  certain  grants. 

§  31.  The  policy  of  the  Government  in  reserving  or  excepting  mineral  lands. 

§  32.  Excepting  clause  in  placer  and  agricultural  patents. 

§  33.  Saline  lands. 

§  34.  School  lands  containing  mmeral. 

§  35.  School  lands  in  Nevada. 

§  36.  Mineral  lands  in  railroad  grants. 

§  28.  Mineral  lands  reserved. — Sec.  2318  of  the  Eevised 
Statutes  of  the  United  States  provides  as  follows  :  "  In  all  cases, 
lands  valuable  for  minerals  shall  be  reserved  from  sale,  except 
as  otherwise  expressly  directed  by  law."  1 

And  by  Sec.  2258  of  the  Eevised  Statutes  it  is  provided  that : 
"  The  following  classes  of  lands,  unless  otherwise  specially  pro- 
vided for  by  law,  shall  not  be  subject  to  the  rights  of  pre-emp- 
tion, to  wit :  First.  Lands  included  in  any  reservation  by  any 
treaty,  law,  or  proclamation  of  the  President,  for  any  purpose. 
Second.  Lands  included  within  the  limits  of  any  incorporated 
town,  or  selected  as  the  site  of  a  city  or  town.  Third.  Lands 
actually  settled  and  occupied  for  purposes  of  trade  and  busi- 
aess,  and  not  for  agriculture.  Fourth.  Lands  on  which  are  sit- 
uated any   known  salines  or  mines."  2 

Minerals  in  the  Indian  Territory  arc  said  to  be  not  reserved  by 
tli'  United  States,  and  the  Land  Office  has  no  control  over  such 
land.'  in  such  Territory.3 

I  See  Art,  of  July  4th,  1866,  1 1  U.  S.  Stats.  8G. 

-  Rev.  Stat.  2268,  Bee.  10,  Act  Sept.  4th,  1841;  5  U.  S.  Stat.  455.  See  Wilcox 
v.  Jackson,  13  Pet.  498;  Josephs  v.  0.8.1  N.  &  II.  197;  Turners.  Am.  B.  Union, 
5  McLean,  844;  U.  S.  V.  B,  B.  Bridge  Co.  6  McLean,  517;  Russell  v.  Beebe, 
Hemps.  704. 

■  1 1'  <  Isionoi  CominissioiK-r,  June 26th,  1873,  Copp'sU.  S.  Mining  Decisions,  208. 


§§   29-31  RESERVATIONS    AND    EXCEPTIONS.  39 

§  29.   Mineral  lands  in  certain  States  not  excepted. — 

Sec.  2345  of  the  Revised  Statutes  reads  :  "  The  provisions  of  the 
preceding  sections  of  this  chapter  shall  not  apply  to  the  mineral 
lands  situated  in  the  States  of  Michigan,  Wisconsin,  and  Min- 
nesota, which  are  declared  free  and  open  to  exploration  and  pur- 
chase, according  to  legal  subdivisions,  in  like  manner  as  before 
the  tenth  day  of  May,  one  thousand  eight  hundred  and  seventy- 
two.  And  any  bona  fide  entries  of  such  lands  within  the  States 
named,  since  the  tenth  day  of  May,  one  thousand  eight  hundred 
and  seventy-two,  may  be  patented  without  reference  to  any  of 
the  foregoing  provisions  of  this  chapter.  Such  lands  shall  be  of- 
fered for  public  sale  in  the  same  manner,  at  the  same  minimum 
price,  and  under  the  same  rights  of  pre-emption  as  other  public 
lands."3 

Exceptions  from  the  operation  of  the  act. — By  an  act  to  ex- 
clude the  States  of  Missouri  and  Kansas  from  the  provisions  of 
the  Act  of  May  10th,  1872,  it  is  provided  that,  within  the  States 
of  Missouri  and  Kansas,  deposits  of  coal,  iron,  lead,  or  other 
mineral,  are  excluded  from  the  operation  of  the  Act  of  1872, 
and  all  lands  in  those  States  are  declared  subject  to  disposal 
as  agricultural  lands.2  Non-mineral  affidavits,  therefore,  are  not 
required  from  parties  who  desire  to  secure  title  to  land  within 
those  States.3 

§  30.  Certain  grants  not  to  include  mineral  lands. — "  No 

act  passed  at  the  first  session  of  the  thirty-eighth  Congress, 
granting  lands  to  States  or  corporations  to  aid  in  the  construc- 
tion of  roads  or  for  other  purposes,  or  to  extend  the  time  of 
grants  made  prior  to  the  thirtieth  day  of  January,  one  thousand 
eight  hundred  and  sixty-five,  shall  be  so  construed  as  to  embi*ace 
mineral  lands,  which  in  all  cases  are  reserved  exclusively  to  the 
United  States,  unless  otherwise  specially  provided  in  the  act  or 
acts  making  the  grant."  f 

§  31.  The  policy  ot  the  Government  in  reserving  or 
excepting  mineral  lands. — It  has  already  been  stated  that  it 

1  Rev.  Stat.  2345;  Act  Feh.  18th,  1873;  17  U.  S.  Stat.  4G5. 

2  Act  approved  May  5th,  1876. 

3  Decision  of  Commissioner,  July  21st,  187G,  3  Copp's  Land-owner,  132 
*  Rev.  St.  2316;  Act,  Jan.  30th,  1S65: 13  U.  S.  Stat.  567. 


40  RESERVATIONS    AXD    EXCEPTIONS.  §  31 

had  always  been  the  policy  of  the  Government  of  the  United 
States  to  reserve  from  sale  and  pre-emption  entry  lands  contain- 
ing minerals  or  "  known  mines."  1  The  truth  of  this  statement 
will  be  demonstrated  by  reference  to  various  acts  of   Congress. 

"  In  1785,  the  Continental  Congress  reserved  one-third  part  of 
gold,  silver,  lead,  and  copper  mines  ;  but  this  principle  was  after- 
ward abandoned.  Salt-springs  and  lead  mines  were  reserved  by 
subsequent  laws,  and  leased  by  the  Government.  The  former 
were  generally  given  to  the  new  States  on  their  admission ;  but 
under  restrictions.  They  could  not  be  sold,  nor  leased  for  a  period 
exceeding  ten  years.  By  Acts  passed  in  1846,  (9  Stat,  at  L. 
37)  and  1847,  (Id.  181)  the  States  were  authorized  to  dispose 
of  their  salt  springs ;  and  lead  and  copper  mines  in  the  northwest 
were  thrown  open  to  settlers,  and  made  subject  to  pre-emption. 
The  Acts  of  July  1st,  1864,  (13  Stat,  at  L.  343)  and  March  3d, 
1865,  (Id.  529)  threw  open  coal  lands  to  entry,  but  fixed  the 
minimum  price  at  twenty  dollars  per  acre,  instead  of  allowing 
pre-emption  at  the  ordinary  rate."  2 

The  ordinance  of  the  Revolutionary  Congress,  continuing 
until  the  Constitutional  Congress  of  1789,  for  ascertaining 
the  mode  of  disposing  of  the  lands  in  the  western  territory, 
passed  May  20th,  1785 — and  which  is  the  basis  of  our  present 
land  system — reserved  "  one-third  part  of  all  gold,  silver,  lead, 
and  copper  mines,  to  be  sold,  or  otherwise  disposed  of,  as  Con- 
gress shall  hereafter  direct"  ;  and  in  the  form  of  grant,  or  patent 
prescribed  by  the  act,  the  language  is,  "  excepting  and  reserving 
one-third  part  of  all  gold,  silver,  lead,  and  copper  mines  within 
the  same,  for  future  sale  or  disposition."  3 

In  numerous  instances,  from  1807,  where  lands  were  author- 
ized to  be  sold  in  particular  sections  of  the  country,  lead  mines 
were  reserved  from  sale ;  and  by  an  Act  of  the  3d  March,  1807, 
(2  Stat,  at  L.  445j  the  President  was  authorized  to  lease  the 
lead  mines  for  a  period  not  exceeding  three  years.  The  Supreme 
Court  of  the  United  States  held  that  power  was  given  to  Con- 

1  Ant.-.  Bee.  i.    Gold  Mill  Quartz  M.  Co.  u.  Isn.  6  Oregon,  107. 
-  Am.  Law  Review,  Vol.  2,  p.  388. 

;:  American  State  Papers,  Public  Lands,  Part  l,  13,  it ;  Yale's  Mining  Claims. 
320 


§  31  RESERVATIONS    AND    EXCEPTIONS.  41 

gross  by  the  Constitution  to  dispose  of  the  public  lands,  and 
that  power  included  the  power  to  lease  as  well  as  to  sell.1 

By  the  eighth  section  of  the  Act  of  the  3d  of  March,  1849, 
(9  Stat,  at  L.  396)  the  powers  of  the  Secretary  of  the  Treasury 
over  lead  and  other  mines,  relating  to  their  supervision  and 
lease,  and  the  accounts  with  agents,  were  transferred  to  the 
Department  of  the  Interior  created  by  that  act. 

The  tenth  section  of  the  General  Pre-emption  Law  of  1841 
(5  Stat,  at  L.  453)  expressly  excepted  from  the  operation  of  the 
law  "  all  lands  on  which  are  situated  any  known  salines  or 
mines." 

The  grants  to  railroad  companies  contain  similar  reservations 
of  mineral  lands ;  and  even  the  Sutro  Tunnel  Act,  while  grant- 
ing all  the  minerals  discovered  in  the  construction  of  the  tunnel, 
and  a  pre-emption  to  two  sections  of  land  near  the  mouth  of 
the  tunnel  for  the  use  of  the  same,  excepts  the  minerals  con- 
tained in  the  land,  and  declares  that  the  land  shall  not  be 
selected  from  mineral  land.2 

By  the  Act  of  March  3d,  1853,  (10  Stats,  at  L.  244)  to  pro- 
vide for  the  survey  of  public  lands  in  California,  and  to  grant 
pre-emption  rights  thereon,  the  Act  of  September  4th,  1841,  is 
extended  to  California,  and  the  Surveyor-General  prohibited 
from  running  other  than  township  lines  on  mineral  lands.  The 
right  of  pre-emption  on  unsurveyed  lands  was  limited  to  the 
period  of  one  year,  and  mineral  lands  were  excluded  from  its 
operation.  The  inhibition  is  repeated  throughout  the  act.  Min- 
eral lands  arc  excepted  by  the  sixth  section,  and  by  the  seventh 
section,  which  provides  that  no  person  shall  obtain  the  benefits 
of  the  act  by  a  settlement  or  location  on  mineral  lands.  (10 
Stats.  244.) 

The  Act  of  July  23d,  18GG,  to  quiet  land  titles  in  California, 
which  required  an  approval  of  the  selection  under  a  school-land 
warrant  issued  by  the  State  authorities,  also,  by  Sec.  1,  excepts 
mineral  lands  from  the  selections.      (14  IT.  S.  Stat,  at  L.  218.) 

Reservations  in  railroad  grants. — Sec.  10  of  the  Act  of  July 
25th,  18GG,  (14  Stats.  239)  granting  lands  to  aid  in  the  con- 
struction of  a  railroad  from  the  line  of  the  Central  Pacific  Rail- 

1  United  States  v.  Gratiot,  14  Pet.  526. 

2  Sec.  2,  Act  of  July  25th.  1868;  11  U.  S.  Stats.  ^42. 


42  RESERVATIONS    AND   EXCEPTIONS.  §  31 

road,  in  California,  to  Portland,  Oregon,  limits  the  grant  to 
alternate  sections  of  land  not  mineral.  The  third  section  of  the 
Act  of  1862,  (12  Stats.  489)  to  aid  in  the  construction  of  a  rail- 
road from  the  Missouri  River  to  the  Pacific  Ocean,  reserves  the 
mineral  land,  but  grants  the  timber  on  it. 

By  Sec.  2  of  the  Act  of  July  13th,  1866,  (14  Stats.  94)  to 
aid  in  the  construction  of  a  railroad  from  Folsom  to  Placer ville, 
in  California,  ten  alternate  sections  per  mile,  designated  by  odd 
numbers,  on  each  side  of  the  line,  "  not  containing  gold  or  sil- 
ver," were  granted. 

The  proviso  is  added  that  the  word  "  mineral "  shall  not  be 
held  to  include  iron  or  coal. 

On  the  30th  of  January,  1865,  a  joint  resolution,  reserving 
mineral  lands  from  the  operation  of  all  acts  of  the  first  session 
of  the  Thirty-eighth  Congress,  was  passed.     (13  Stats.  567.) 

But  Fletcher  v.  Peck,  6  Cranch,  87,  decides  that  where  a  right 
vests  by  legislative  grant,  even  in  the  case  where  a  fraud  was 
committed  by  the  party  interested  in  obtaining  it,  a  repeal  of 
the  act  cannot  divest  the  right ;  and  certainly  a  legislative  dec- 
laration could  not  effect  it.  While,  therefore,  such  a  resolu- 
tion might  be  important  as  showing  the  intention  of  Congress, 
if  an  act  had  actually  granted  mineral  land,  and  there  was  no 
room  for  construction,  it  would  probably  be  inoperative.1 

The  Government  never  parted  with  the  right  to  the  mines. — 
It  was  said,  in  U.  S.  v.  Parrott,  1  McAllister,  C.  C.  271,  (which 
was  ;i  branch  of  the  celebrated  Castillcro  litigation,  relative  to 
the  ^scw  Almaden  quicksilver  mine)  that  neither  the  policy  nor 
legislation  of  a  State  could  deprive  the  United  States  of  any 
legal  right  they  had  to  the  mines. 

The  Act  of  1850,  (9  U.  S.  Stats.  452)  admitting  California 
into  the  Union,  expressly  provided  that  the  people  of  that  State, 
through  their  legislature,  or  otherwise,  should  never  interfere 
with  the  primary  disposal  of  the  public  lands  within  its  limits, 
and  should  pass  no  law  and  do  no  act  whereby  the  title  of  the 
United  States  to,  and  right  to  dispose  of,  said  lands  should  be 
impaired  or  questioned.     Congress  had  never  parted  with  the 

1  Yule's  Mining  Churns.  '.V2'J. 


§  31  RESERVATIONS    AND   EXCEPTIONS.  43 

mines  nor  the  right  to  dispose  of  them,  but  had  a  right  at  any 
moment  to  dispose  of  them.1 

Reservations  in  grants  to  the  States. — The  Pre-emption  Act 
of  1841,  granting  to  certain  States  therein  named,  and  to  all 
new  States  afterward  admitted,  500,000  acres  of  land,  excluded 
reserved  lands,  salines,  and  known  mines  from  sale.  It  was 
held,  in  California,  that  the  question  as  to  whether  mineral  or 
agricultural  land  prevailed,  having  been  ascertained  by  the 
officers  of  the  State,  and  the  selection  approved  by  the  United 
States,  a  State  patent  would  hold  the  land.2 

By  the  seventy-two  section  grant  for  the  use  of  a  seminary  of 
learning,  and  by  the  ten-section  grant  for  public  buildings,  (see 
Sees.  12  and  13,  Act  of  March  3d,  1853,  10  Stats.  248)  mineral 
lands  and  reserved  lands  Avere  reserved  from  location. 

So,  also,  with  the  Act  of  May  30th,  1862,  extending  the  pre- 
emption laws,  Sec.  7  (12  Stats.  410). 

And  the  Act  of  July  2d,  1862,  (12  Stats.  503)  for  mining 
colleges. 

The  Illinois  lead  case. — Digging  for  minerals  on  the  public 
domain  of  the  United  States,  before  the  passage  of  the  Mining 
Act  of  1866,  was  a  trespass,  entitling  the  Government  to  dam- 
ages in  an  action  at  law,  and  was  such  waste  as  might  have 
been  restrained  by  injunction.3 

By  an  Act  of  the  3d  of  March,  1807, 2  U.  S.  Stats.  445,  the  lead 
mines  of  Indiana  Territory,  and  afterward  the  State  of  Illinois, 
were  reserved  from  sale,  and  the  President  authorized  to  lease 
them  for  a  period  not  exceeding  three  years,  and  a  grant  of  land, 
containing  a  lead  mine  discovered  before  the  sale,  was  declared 
to  be  fraudulent  and  void;  and,  in  U.  S.  v.  Gear,  3  How.  120,  the 
defendant  in  a  civil  action  was  held  guilty  of  trespass,  in  mining 
for  lead  upon  land  in  the  State  of  Illinois,  and  an  injunction 
was  granted  restraining  hiin  from  the  commission  of  waste. 

By  the  fifth  section  of  the  act,  the  lead  mines  were  reserved 
from  sale.  By  the  Act  of  June  26th,  1834,  to  create  additional 
land  districts  in  the  State  of  Illinois  and  elsewhere,  in  connec- 
tion with  the  Pre-emption  Acts  of  1830  and  1832,  all  the  lands 
described  in  the  Act  of  1834  became  the  subject  of  sale  and  pre- 

iU.  S.  v.  Parrott.  1  McAll.  C.  C.  271.  2  Ah  Yew  v  Choate,  24  Cal.  562. 

3  U.  S.  v.  Gear.  3  How.  U.  S.  120. 


44  RESERVATIONS    AND    EXCEPTIONS.  §  31 

eruption ;  and  the  question  in  Gear's  case  was,  whether  the  Act 
of  1834  repealed  the  reservation  contained  in  the  Act  of  1807, 
and  subjected  the  land  in  question,  containing  lead  ore,  to  pre- 
emption and  sale.  The  Court  held  that  there  was  no  repeal, 
and  that  the  land  was  not  open  to  settlement  by  reason  of  the 
reservation  ;  besides,  the  right  of  the  Government,  as  owner  of 
the  land,  to  restrain  the  trespass,  was  complete  and  perfect.1 

Implied  license. — That  there  was  ever  an  implied  license 
from  the  Government  to  mine  for  the  precious  metals  upon  the 
public  land,  by  reason  of  its  indulgence,  if  not  the  direct  en- 
couragement extended  to  the  mining  population,  was  always 
denied  in  the  Courts  of  the  United  States.  The  defendant,  in 
the  case  of  U.  S.  v.  Parrott,  claimed  this  license,  and  through 
it,  immunity  from  damages  for  waste,  but  the  claim  was  de- 
nied.2 

The  sale  of  lead  mines. — By  an  Act  of  July  11th,  1846,  (9 
Stats.  37)  Congress  authorized  the  sale  of  the  reserved  lead 
mines  in  the  States  of  Illinois  and  Arkansas,  and  the  then  Ter- 
ritories of  Wisconsin  and  Iowa,  at  an  increased  rate  of  $1.25 
per  acre,  as  the  minimum  at  public  sale,  but  still  excepting  the 
lead  mines  from  the  operation  of  the  pre-emption  laws,  until 
after  they  had  been  offered  at  public  sale. 

By  the  Act  of  March  3d,  1847,  (9  Stats.  179)  to  create  an 
additional  land  district  in  Wisconsin,  pre-emption  was  granted 
to  parties  in  the  possession  of  lead  mines  by  occupation,  through 
discovery,  or  lease,  under  the  United  States. 

By  the  Act  of  March  1st,  1847,  (9  Stats.  14G)  the  copper 
mines  of  Michigan  were  ordered  to  be  sold,  civino;  certain 
preferences  to  lessees  under  the  Government,  and  persons  in 
possession. 

But  by  the  Act  of  Sept.  2Gth,  1850,  (9  Stats.  472)  both  of 
these  were  repealed,  and  this  placed  the  mineral  lands  within 
these  districts  upon  the  same  footing,  as  to  sale,  private  entry, 
and  pre-emption,  as  other  public  lands  of  the  United  States,  sav. 
iii'r  certain  vested  rights.8 

i  Bee  Coo. ,n  /•.  I  .  S.  ]|  Eow.  U.  S.  L"J'.>;  Yale's  Mining  Claims,  331. 
-r.  S.  ,-.  Parrott,  I  McAU.  C.  C.   Rep.  271 ;  ('.  S.  v.  Castillcro,  2  Black.  U.  S. 
]7;  Yale's  Mining  Claims,  p.  333. 
"•  See  '  'ooper  v.  Robert  >,  L8  I  lew.  173;  Higgins  v.  Houghton,  25  Cal.  252. 


§  31  RESERVATIONS    AND    EXCEPTIONS.  45 

Sale  and  'pre-emption  of  coal  lands. — Coal  lands  having  been 
reserved  under  the  General  Pre-emption  Act  of  1841,  an  Act  of 
July  1st,  1864,  (13  Stats.  343)  for  the  disposal  of  coal  lands 
and  town  property  on  the  public  domain,  authorized  tracts  em- 
bracing coal  fields,  or  coal  beds — and  which  by  that  act  and  past 
legislation  were  excluded,  as  mines,  from  ordinary  private  en- 
try— to  be  sold. 

By  an  amendatory  Act  of  March  3d,  1865,  (13  Stats.  529) 
citizens  of  the  United  States,  who  at  that  date  were  actually 
engaged  in  bona  fide  coal  mining,  on  public  lands  not  reserved 
for  purposes  of  commerce,  had  a  pre-emption  to  160  acres  of 
land,  and  might  enter  the  same. 

Grants  from  Indian  Tribes  in  America. — The  character  of 
the  grant  of  mines  from  Indian  tribes  came  up  for  discussion  in 
the  important  case  of  Chouteau  v.  Moloney,  (16  How.  U.  S.  203) 
which  was  an  action  in  the  nature  of  ejectment  for  a  large  tract 
of  land,  including  the  whole  city  of  Dubuque,  Iowa,  and  which 
tract  was  formerly  a  part  of  the  Louisiana  territory  acquired 
by  the  United  States  from  France  under  the  Treaty  of  Paris  of 
1803.  It  was  admitted  that  the  defendant  had  all  the  title  that 
the  United  States  possessed  under  the  treaty.  But  the  plaintiff 
claimed  that  he  had  acquired  title  to  the  land  before  the  treaty  ; 
and,  as  private  property  was  excepted  from  the  cession  to  the 
United  States  by  the  terms  of  the  treaty,  the  Government  of 
the  United  States  never  had  any  title  to  give,  nor  any  interest 
that  could  pass  by  its  patent. 

It  is  to  be  remembered  that  the  French  had  retained  possession 
of  Louisiana  up  to  1762,  when  they  ceded  it  to  Spain ;  but  in 
1800,  Bonaparte,  then  First  Consul,  induced  the  Spanish  Gov- 
ernment to  retrocede  it  to  France,  and  it  remained  French  terri- 
tory until  the  cession  to  the  UnitedtStates  in  1803. 

During  the  interval  of  time  when  it  was  the  property  of  Spain — 
viz,  in  1788 — the  tribe  of  Indians  called  the  Foxes  sold  to  the 
person  under  whom  plaintiff  claimed,  a  permit  to  work  at  a  cer- 
tain mine  as  long  as  he  pleased,  and  also  sold  and  abandoned  to 
him  all  the  adjacent  coast  and  contents  of  the  mine.  In  1796, 
the  grantee  or  licensee  presented  his  petition  to  the  governor  of 
the  territory,  under  the  Spanish  rule,  for  a  confirmation  of  the 
sale,  and  a  grant  of  the  mine  and  land,  and  the  governor  made 


46  RESERVATIONS    AND    EXCEPTIONS.  §  31 

confirmation  and  grant  accordingly.  The  question,  therefore, 
was,  did  the  title  then  pass  ? 

The  question  was  to  be  decided  under  the  Spanish  laws  and 
regulations  then  in  force,  and  under  those  laws  and  regulations 
it  was  held,  in  the  first  place,  that  the  Indian  tribes  never  had 
any  right  to  interfere  with  or  dispose  of  the  mines  within  the 
dominion  of  Spain.  The  right  of  the  Indians,  as  recognized  by 
the  latter  country,  extended  to  occupancy,  but  never  to  sale  of 
the  territory. 

In  that  case,  it  was  also  held  that  the  Avords  of  the  grant  from 
the  Indians  did  not  show  an  intent  to  part  with  anything  more 
than  a  mining  privilege,  and  that  the  governor,  in  his  subsequent 
grants,  only  intended  to  confirm  such  rights  as  the  Indians  had 
previously  given;  and,  further,  that  the  proceedings  to  obtain 
the  grant  for  the  lands  were  irregular  under  the  Spanish  laws, 
and  no  complete  title  passed.  The  title  confirmed  and  granted 
was  good  as  a  permission  to  dig  and  work  the  mines,  but 
nothing  more.1 

By  Article  4  of  the  Treaty,  proclaimed  January  17th,  1865, 
concluded  on  the  12th  of  October,  1863,  between  the  United 
States  and  the  Shoshone-Goship  bands  of  Indians  at  Tuilla 
Valley,  Utah,  (now  a  part  of  Montana)  it  was  provided  that 
the  country  of  the  tribe  might  be  explored  or  prospected  for 
gold  and  silver,  and  other  minerals  and  metals,  and  when  mines 
were  discovered  that  they  might  be  Avorked,  etc.  (13  Stats.  682.) 
This  is  the  first  declaration  to  be  found  in  the  laws  of  the 
United  States,  authorizing,  with  the  consent  of  Indian  chiefs, 
the  digging  of  gold  upon  public  land — if  such  a  provision  can 
be  called  an  authorization. 

Further  acts  of  Congress. — By  the  Act  of  February  27th, 
1865,  it  was  provided  that  no  possessory  action  between  indi- 
viduals in  any  of  the  Courts  of  the  United  States,  for  the 
recovery  of  any  mining  title,  or  for  damages  to  any  such  title, 
should  be  affected  by  the  fact  that  the  paramount  title  to  the 
land  on  wliidi  the  mines  were  was  in  the  United  States,  but 
each  case  was  l<>  be  adjudged  by  the  law  of  possession.  (13 
Stnts.  441. j  This  section  is  general  in  its  terms,  and  applies  to 
all  Federal  Courts. 

1  Chouteau  v.  Moloney,  1G  How.  203. 


§  32  RESERVATIONS    AND    EXCEPTIONS.  47 

The  Act  of  May  5th,  1866,  Section  2,  (14  Stats.  43)  concerning 
the  boundaries  of  the  State  of  Nevada,  recognized  and  protected 
possessory  rights  to  mining  claims  in  Nevada,  but  proceeded 
further  to  state  that  the  act  was  not  to  be  construed  as  o-rantino- 
a  title  in  fee  to  any  mineral  lands  held  by  possessory  titles  in 
the  mining  States  and  Territories. 

Next  came  the  Act  of  July  25th,  1866,  (14  Stats.  242)  granting 
the  right  of  way,  and  other  privileges,  to  Adolph  Sutro  and  his 
assigns,  and  commonly  known  as  the  Sutro  Tunnel  Act.  This 
was  the  first  act  of  Congress  which,  in  express  terms,  granted  a 
mining  privilege  on  public  land  to  any  individual,  or  the  public 
at  large. 

§  32.  Excepting  clauses  in  placer  and  agricultural  pat- 
ents.— A  patent  for  a  placer  claim  conveys  "  all  valuable  mineral 
and  other  deposits  within  the  boundaries  thereof,"  if  no  veins 
or  lodes  are  claimed  or  known  to  exist  within  the  exterior  limits . 
of  the  claim  patented  at  the  date  of  patent.  In  cases  arising 
under  the  eleventh  section,1  an  excepting  clause  is  inserted  as 
follows:  "That,  should  any  other  vein,  or  lode,  of  quartz,  or 
other  rock  in  place,  bearing  gold,  silver,  cinnabar,  lead,  tin, 
copper,  or  other  valuable  deposit,  be  claimed  or  known  to  exist 
within  the  above  described  premises  at  the  date  hereof,  the 
same  is  expressly  excepted  and  excluded  from  these  presents." 

In  all  agricultural  land  patents  the  following  clause  is  inserted, 
viz :  "  Subject  to  any  vested  and  accrued  water-rights  for  min- 
ing, agricultural,  manufacturing,  or  other  purposes,  and  rights 
to  ditches  and  reservoirs  used  in  connection  with  such  water- 
rights  as  may  be  recognized  and  acknowledged  by  the  local  cus- 
toms, laws,  and  decisions  of  Courts,  and  also  subject  to  the  right 
of  the  proprietor  of  a  vein  or  lode  to  extract  and  remove  his 
ore  therefrom  should  the  same  be  found  to  penetrate  or  intersect 
the  premises  hereby  granted,  as  provided  by  law." 

No  title  to  a  mining  claim  can  be  secured  under  an  agricul- 
tural land  patent.     (See  Sec.  2258,  Eev.  Stat.)  2 

1  Rev.  Stat.  U.  S.  Sec.  2333. 

2  Decision  of  Commissioner,  July  29th,  1875,  2  Copp's  Land-owner,  82. 


48  RESERVATIONS    AND    EXCEPTIONS.  §  33 

§  33.  Saline  lands. — These  lands  sire  not  subject  to  home- 
stead or  pre-emption  entry.  (See  Sees.  2258  and  2289,  Rev. 
Stat.  U.  S.)  The  policy  of  the  Government  has  been  uniform 
since  the  inauguration  of  the  land  system,  to  reserve  from  sale 
salt-springs. 

The  Act  of  May  18th,  1796,  (1  U.  S.  Stat.  466)  requires 
every  surveyor  to  note  in  his  field-book  the  true  situation  of  all 
mines,  salt-licks,  and  salt-springs,  and  reserves  for  future  disposi- 
tion by  the  United  States  every  salt-spring  which  may  be  dis- 
covered, together  with  the  section  of  one  mile  square  which  in 
eludes  it. 

The  Act  of  May  10th,  1800,  (2  U.  S.  Stat.  73)  continued 
these  reservations,  and  authorized  sales  to  be  made  of  the  public 
lands  by  the  Register  and  Receiver,  excluding  the  sections  re- 
served by  the  above  mentioned  act. 

The  Act  of  March  26th,  1804,  (2  U.  S.  Stat.  277)  providing 
for  the  disposal  of  the  public  lands  in  the  Indiana  Territory, 
declares  that  "  the  several  salt-springs  in  the  said  Territory,  to- 
gether with  as  many  contiguous  sections  to  each  as  shall  be 
deemed  necessary  by  the  President  of  the  United  States,  shall 
be  reserved  for  the  future  disposal  of  the  United  States." 

It  has  been  the  policy  of  the  Government  to  reserve  these 
salt-springs  and  lands  from  sale,  as  is  evidenced  by  the  text  of 
the  different  acts  regulating  the  disposal  of  the  public  lands. 

The  Act  of  April  30th,  1802,  (2  U.  S.  Stat.  173)  admitting 
the  State  of  Ohio,  granted  to  the  State  certain  salt-springs. 

The  Act  of  April  18th,  1818,  (3  U.  S.  Stat.  429)  authoriz- 
ing the  admission  of  the  State  of  Illinois,  grants  all  the  salt- 
springs  and  the  lands  reserved  for  the  use  of  the  same  to  the 
State. 

The  Act  of  March  6th,  1820,  (3  U.  S.  Stat.  545)  authoriz- 
ing the  people  of  Missouri  to  form  a  State  government  and  for 
the  admission  of  the  State,  provides  "that  all  salt-springs,  not 
exceeding  twelve  in  number,  with  six  sections  of  land  adjoin- 
ing to  each,  shall  be  granted  to  the  said  State  for  the  use  of  said 
Stati'.  Provided,   that    no    salt-spring,   the   right 

whereof  now  Is,  or  hereafter  shall  be,  confirmed  or  adjudged  to 
any  individual  or  individuals,  shall  by  this  section  be  granted  to 
the  -aid  Stud-." 


§  33  RESERVATIONS    AND    EXCEPTIONS.  49 

The  same  provision  is  made  in  the  acts  providing  for  the  ad- 
mission of  the  following  named  States,  as  was  provided  in  case 
of  Missouri,  viz :  Arkansas,  5  U.  S.  Stat.  58 ;  Michigan,  5  U. 
S.  Stat.  59  ;  Florida,  5  U.  S.  Stat.  789  ;  Iowa,  5  U.  S.  Stat.  789  ; 
Wisconsin,  9  U.  S.  Stat.  58 ;  Minnesota,  11  U.  S.  Stat.  166  ; 
Oregon,  11  U.  S.  Stat,  383 ;  Kansas,  11  U.  S.  Stat.  269 ;  Ne- 
braska, 13  U.  S.  Stat.  47. 

The  Act  approved  March  3d,  1875,  (18  U.  S.  Stat.  474)  en- 
abling the  people  of  Colorado  to  form  a  State  government,  and 
for  the  admission  of  the   State  into  the   Union,  has  the   same 
provisions  in  regard  to  salt-springs   as  those   contained  in  the 
..■-       Missouri  act. 

The  Supreme  Court  of  the  United  States,  in  the  case  of  Mor- 
ton v.  Nebraska,  21   Wall.  660,   construed  the  proviso  in  the 
■v     o-rant  to  Nebraska  of  salt  lands.     This  proviso  reads  the  same 
?\)  in  the  Nebraska  and   Colorado   acts,  viz  :  "  Provided,  that  no 
salt-spring  or  lands,  the  right  whereof  is  now  vested  in  any  in- 
dividual or  individuals,  or  which  hereafter  shall  be  confirmed  or 
adjudged  to  any  individual  or  individuals,  shall   by   this  act  be 
^  granted  to  said  State." 

The  State  of  Nebraska  is  within  the  limits  of  the  Louisiana 
purchase.  That  part  of  Colorado  which  embraced  the  salt- 
springs  in  controversy  lies  within  the  boundaries  of  the  territory 
ceded  by  Mexico  to  the  United  States. 

The  Court  held  that  "  the  purpose  Congress  had  in  view  is  to 
be  found  in  the  unbroken  line  of  policy  in  reference  to  saline 
reservations,  from  1796  to  the  date  of  this  act.  To  perpetuate 
this  policy,  and  apply  it  equally  to  all  the  lands  of  the  three  Ter- 
ritories, ^Kansas,  Nebraska,  and  New  Mexico)  was  the  controll- 
ing cSislJlemtion  for  the  incorporation  of  the  section  (Sec.  4r 
July<£2Jl,  1S54, 10  U.  S.  Stat.  308)  ;  and  although  the  words 
of  th>  s£ct5>n  are  loose  and  general,  their  meaning  is  plain 
enough  when  taken  in  connection  with  the  previous  legislation  on 
the  subjfict^>f  salines.  It  cannot  be  supposed,  without  an  ex- 
press declaration  to  that  effect,  that  Congress  intended  to  per- 
mit the  !&le  of  salines  in  Territories  soon  to  be  organized  into 
States,  and  thus  subvert  a  long  established  policy,  by  which  it 
had  been  governed  in  similar  cases." 
W.  C— 4. 


->•, 


50  RESERVATIONS    AND    EXCEPTIONS.  §  33 

Where  it  is  not  shown  that  any  valuable  deposit  of  salt  is 
found  upon  the  land,  but  the  lands  appear  to  be  valuable  only 
on  account  of  salt-springs,  the  office  has  no  authority  to  dis- 
pose of  the  tracts,  either  as  agricultural  or  mineral  lands.  Ac- 
cordingly, certain  salt-springs  in  Colorado,  "  with  six  sections 
adjoining,  and  as  contiguous  as  may  be  to  each,"  were  reserved, 
in  order  that  Colorado  might  be  placed  on  an  equal  footing  with 
other  States  in  the  matter  of  salt-spring  reservations.  Filings 
thereon  were  rejected.1 

The  status  of  saline  lands  and  salt-springs  was  fully  considered 
by  the  Supreme  Court  of  the  United  States  in  the  case  of  Morton 
v.  Green  et  al.  and  the  State  of  Nebraska,  already  adverted  to.2 
The  action  was  ejectment,  plaintiff's  title  being  based  upon  loca- 
tions of  certain  warrants.  The  real  defendant,  the  State  of  Ne- 
braska, insisted  that  the  locations  were  without  authority  of  law, 
because  the  lands  on  which  the  warrants  were  laid  were  saline 
lands,  and,  therefore,  not  subject  to  entry.  Justice  Davis,  deliv- 
ering the  opinion  of  the  Court,  said  :  "  The  policy  of  the  Govern- 
ment, since  the  acquisition  of  the  northwest  territory  and  the 
inauguration  of  our  land  system,  to  reserve  salt-springs  from 
sale,  has  been  uniform.  The  Act  of  May  18th,  1796,  (1  Stats. 
464)  the  first  to  authorize  a  sale  of  the  domain  ceded  by  Virginia, 
is  the  basis  of  our  present  rectangular  system  of  surveys.  That 
act  required  every  surveyor  to  note  in  his  field-book  the  true  sit- 
uation of  all  mines,  salt-licks,  and  salt-springs ;  and  reserves  for 
the  future  disposal  of  the  United  States  a  well-known  salt- 
spring  on  the  Scioto  River,  and  every  other  salt-spring  which 
should  be  discovered. 

"  These  reservations  were  continued  by  the  Act  of  May  10th, 
1800,  (2  Stats.  73)  which  created  land  districts  in  Ohio,  with 
registers  and  receivers,  and  authorized  sales  by  them;  the  pre- 
ceding act  having  recognized  the  governor  of  the  northwest 
territory  and  the  Secretary  of  the  Treasury  as  the  agents  for 
the  Bale  of  the  lands.  And  the  same  policy  was  observed  when 
provision  was  made  in  1804  for  the  disposal  of  the  lands  in  the 
Indiana  Territory— embracing  what  are  now  Illinois  and  Indi- 

i  Hull  v.  Litchfield.  Decision  of  A.c6ng  Commissioner,  March  2d.  1876,  2  Copp's 
Land-owner,  it'.i. 

821  Wall.  c.  s.  660. 


§  33  RESERVATIONS    AND    EXCEPTIONS.  51 

ana.  (2  Stats.  277.)  It  was  then  declared  '  that  the  several 
salt-springs  within  said  Territory,  with  as  many  contiguous  sec- 
tions to  each  as  shall  be  deemed  necessary  by  the  President, 
shall  be  reserved  for  the  further  disposal  of  the  United  States.' 
AYithout  referring  particularly  to  the  different  acts  of  Congress 
on  the  subject,  it  is  enough  to  say  that  all  the  salines  in  the 
Virginia  cession  were  reserved  from  sale,  and  afterward  granted 
to  the  several  States  embraced  in  the  ceded  territory.  Congress, 
in  the  disposition  of  the  public  lands  in  the  Mississippi  Territory, 
(2  Stats.  548 ;  3  Stats.  489)  and  in  the  Louisiana  purchase, 
preserved  the  policy  which  it  had  applied  to  the  country  obtained 
from  Virginia.  Over  all  the  territory  acquired  from  France 
the  general  land  system  was  extended.  The  same  rules  which 
were  prescribed  by  law  for  the  survey  and  sale  of  lands  east  of 
the  Mississippi  River  were  transferred  to  this  new  •  acquisition. 
(2  Stats.  324.)  At  the  first  sale  of  lands  in  this  region  which 
the  President  Avas  authorized  to  make,  salt-springs,  and  lands 
contiguous  thereto,  were  excepted.  (2  Stats.  391.)  And  this 
exception  was  continued  when,  in  1811,  a  new  land  district  was 
created.  Prior  to  this  time,  no  portion  of  the  country  north  of 
the  State  of  Louisiana  had  been  brought  into  market.  The  Act 
of  March  3d,  1811,  authorized  this  to  be  done,  but  the  President, 
in  offering  the  lands  for  sale,  was  directed  to  except  salt-springs, 
lead  mines,  and  lands  contiguous  thereto,  which  were  reserved 
for  the  future  disposal  of  the  States  to  be  carved  out  of  this 
immense  territory,  which  included  the  present  State  of  Nebraska. 
(3  Stats.  QG5,  Sec.  10.)  And  so  particular  was  Congress  not 
to  depart  from  this  policy,  that  in  giving  lands,  in  1815,  to  the 
sufferers  by  the  New  Madrid  earthquake,  every  lead  mine  and 
salt-spring  were  excluded  from  location.  Indeed,  in  all  the 
acts  creating  new  land  districts,  in  the  territory  now  occu- 
pied by  the  States  of  Arkansas  and  Missouri,  the  manner  of 
selling  the  public  lands  is  not  changed,  nor. is  a  sale  of  salines  in 
any  instance  authorized.  On  the  contrary,  they  incorporate  the 
same  reservations  and  exceptions  which  are  contained  in  the 
Act  of  March  3d,  1811.  In  all  of  them,  the  Act  of  18th  May, 
179G,  is  the  rule  of  conduct  for  all  Surveyors-General  and  their 
deputies,  as  the  Act  of  10th  May,  1800,  is  the  rule  for  all  reg- 


52  RESERVATIONS    AND    EXCEPTIONS.  §  33 

isters,  requiring  them  to  exclude  from  sale  all  salt  springs,  with 
the  sections  containing  them 

"  In  this  state  of  the  law  of  saline  reservations,  the  Act  of  22d 
July,  1854,  was  passed.  It  is  by  no  means  certain  that  the  Act 
of  March  3d,  1811,  did  not  work  the  reservation  of  every  saline 
in  the  Louisiana  purchase  ;  but,  without  discussing  this  point,  it 
is  enough  to  say  that  the  Act  of  1854  leaves  no  doubt  of  the 
intention  of  Congress  to  extend  to  the  territory  embraced  by 
the  States  of  Kansas  and  Nebraska,  the  same  system  that  had 
been  applied  to  the  rest  of  the  Louisiana  purchase.  There  was 
certainly  no  reason  why  a  long  established  policy,  which  had 
permeated  the  land  system  of  the  country,  should  be  abandoned. 
On  the  contrary,  there  was  every  inducement  to  continue,  for 
the  benefit  of  the  States  thereafter  to  be  organized,  the  policy 
which  had  prevailed  since  the  first  settlement  of  the  north- 
western territory.  In  the  admission  of  Ohio  and  other  States, 
Congress  had  made  liberal  grants  of  land,  including  the  salt- 
springs.  This  it  was  enabled  to  do  by  reserving  these  springs 
from  sale.  Without  this  reservation,  it  is  plain  to  be  seen  there 
would  have  been  no  springs  to  give  away,  for  every  valuable 
saline  deposit  would  have  been  purchased  as  soon  as  it  was  of- 
fered for  sale.  An  intention  to  abandon  a  policy  which  had  se- 
cured to  the  States  admitted  before  1854  donations  of  great 
value,  cannot  be  imputed  to  Congress,  unless  the  law<Jn  the  sub- 
ject admits  of  no  other  construction. 

"  But  the  Law  of  1854,  (10  Stats.  308)  instead  of  manifesting 
an  intention  to  abandon  this  policy,  shows  a  purpose  to  continue 
it.  It  was  the  first  law  under  which  lands  were  surveyed  in 
Nebraska,  offered  at  public  sale,  and  so  made  subject  to  private 
sale  hy  entry.  By  it,  Surveyors-General  for  New  Mexico,  and 
for  Kansas  and  Nebraska,  were  appointed,  with  the  usual  powers 
and  duties  of  such  officers.  And,  although  there  arc  provisions 
relating  to  New  Mexico  applicable  to  that  Territory  alone,  yet 
the  leading  purpose  of  this  act  was  to  bring  into  market,  as  soon 
a  practicable,  I  he  lands  of  the  United  States  in  all  of  these  Ter- 
ritories. In  New  Mexico  this  could  not  be  done  as  soon  as  in  Kan- 
or  Nebraska,  on  account  of  the  policy  adopted  of  donations  to 
actual  settlers  who  should  remove  there  before  the  first  of  Jan- 
uary, 1858,  and   because   of    the  necessity  of    segregating    the 


§  33  RESERVATIONS    AND    EXCEPTIONS.  53 

Spanish  and  Mexican  claims  from  the  mass  of  the  public  domain. 
For  this  reason,  doubtless,  local  land  offices  were  not  created  in 
New  Mexico,  but  they  were  in  Kansas  and  Nebraska,  and  regis- 
ters and  receivers  appointed,  with  the  powers  and  duties  of  sim- 
ilar officers  in  other  land  offices  of  the  United  States.  And  the 
President  was  authorized  to  cause  the  lands,  when  surveyed,  to 
be  exposed  to  sale  from  time  to  time,  in  the  same  manner  and 
upon  the  same  terms  and  conditions  as  the  other  public  lands  of 
the  United  States.  If  there  were  no  other  provisions  in  the 
law  than  we  have  enumerated,  we  should  hesitate  to  say,  in  view 
of  the  limitation  on  sales  prescribed  by  law  wherever  public 
lands  had  been  offered  for  sale,  that  they  did  not  of  themselves 
work  a  reservation  of  the  land  in  controversy.  In  conducting 
the  public  sales  the  register  always  reserved  salines,  as  it  was 
his  duty  to  do,  when  marked  on  the  plats,  and  this  was  never 
omitted,  except  by  the  neglect  of  the  Surveyors-General  or  their 
deputies.  But  the  fourth  section  of  the  act  removes  all  doubt 
upon  that  subject.  That  section  declares  that  none  of  the  pro- 
visions of  this  act  shall  extend  to  mineral  or  school  lands,  salines, 
military  or  other  reservations,  or  lands  settled  on  or  occupied 
for  purposes  of  trade  and  commerce. 

"  It  is  contended  that  this  section  applies  to  the  donations, 
conceded  in  the  preceding  sections,  to  actual  settlers  in  New 
Mexico.  But  why  make  this  restriction  ?  To  do  it  would  re- 
quire the  importation  of  the  word  'foregoing,'  so  that  the 
section  would  read  :  None  of  the  (foregoing)  provisions  shall  ex- 
tend to  salines  or  mineral  lands.  There  is  no  authority  to  make 
this  importation,  and  in  this  way  subtract  from  the  general 
words  of  the  section.  The  language  of  the  section  is  imper- 
ative, and  leaves  no  room  for  construction.  Besides,  why  should 
an  intention  be  imputed  to  Congress  to  exclude  actual  settlers 
from  saline  lands,  but  leave  them  open  to  private  entry  by 
speculators  ?  The  legislation  upon  the  subject  of  public  lands 
has  always  favored  the  actual  settlers,  but  the  construction  con- 
tended for  would  discriminate  against  them,  and  in  favor  of  a 
class  of  persons  whose  interests  Congress  has  never  been  swift 
to  promote. 

"  Apart  from  this,  however,  the  purpose  Congress  had  in 
view  is  to  be  found  in  the  unbroken  line  of  policy  in  reference 


54  RESERVATIONS    AND    EXCEPTIONS.  §  33 

to  saline  reservations,  from  1796  to  the  date  of  this  act.  To 
perpetuate  this  policy,  and  apply  it  equally  to  all  the  lands  of 
the  three  Territories,  was  the  controlling  consideration  for  the 
incorporation  of  the  section,  and  although  the  words  of  the 
section  are  loose  and  general,  their  meaning  is  plain  enough 
when  taken  in  connection  with  the  previous  legislation  on  the 
subject  of  salines.  It  cannot  be  supposed,  without  an  express 
declaration  to  that  effect,  that  Congress  intended  to  permit  the 
sale  of  salines  in  Territories  soon  to  be  organized  into  States, 
and  thus  subvert  a  long-established  policy  by  which  it  had  been 
governed  in  similar  cases.  If  anything  were  needed  to  show 
that  the  fourth  section  did  reserve  saline  from  sales,  it  can  be 
found  in  the  Act  of  the  3d  of  March,  1857,  (11  Stats.  186)  re- 
arranging the  land  districts  in  Nebraska.  This  act  excepts 
from  sale  such  lands  '  as  may  have  been  reserved.'  This  is  a 
declaration  that  lands  had  been  reserved,  and  obviously  it  is  a 
legislative  construction  of  the  fourth  section  of  the  Act  of  1851, 
for  nowhere  else,  except  by  implication,  had  there  been  res- 
ervations of  any  sort  in  the  Territory  of  Nebraska. 

"  Besides  this,  the  Nebraska  Enabling  Act  of  April  10th,  1864, 
(13  £kats.  47)  affords  still  further  evidence  that  the  Act  of 
1854  was  intended  to  reserve  salines.  The  purpose  of  reserving 
them  was  to  preserve  them  for  the  use  of  the  future  States,  and 
no  State  had  been  organized  without  a  grant  of  salt-springs. 
In  some  of  the  States,  the  grant  was  of  all  within  their  bound- 
aries, but  on  the  admission  of  Missouri,  and  since,  the  number 
was  limited  to  twelve.  This  number,  with  a  certain  quantity 
of  contiguous  lands,  were  granted  to  Nebraska  on  her  admis- 
sion. In  doing  this,  Congress  must  have  assumed  that  the 
springs  had  been  reserved  from  sale,  for  if  this  had  not  been 
done,  ilic  presumption  is,  there  would  have  been  nothing  for 
the  grant  to  operate  upon.  It  may  be  true  that  lands  only  fit 
I'm-  agriculture  will  remain  a  long  time  unentered,  but  this  would 
never  he  the  case  with  lands  whose  surface  was  covered  over 
with  salt.  It  would  he  an  idle  thing  to  make  a  grant  of  such 
lands,  it  there  had  been  a  previous  right  of  entry  conceded  to 
individuals.  This  was  in  the  mind  of  Congress,  and  induced 
the    reservation    in   the   Act  of  1854,  by  means  of  which  No- 


§  33  RESERVATIONS    AND    EXCEPTIONS.  55 

braska  could  be  placed  on  an  equal  footing  with  other  States  in 
like  situation. 

"  But  it  is  said  the  locations  in  question  are  ratified  by  the 
proviso  to  the  section  granting  the  salt-springs.  This  proviso 
was  as  follows  :  '  Provided,  that  no  salt-spring  or  lands,  the  right 
whereof  is  now  vested  in  any  individual  or  individuals,  or  which 
hereafter  shall  be  confirmed  or  adjudged  to  any  individual  or 
individuals,  shall  by  this  act  be  granted  to  said  State.'  This 
provision,  with  an  unimportant  change  in  phraseology,  was  first 
introduced  into  the  Enabling  Act  for  Missouri,  (3  U.  S.  Stats. 
547,  Sec.  6)  and  exactly  similar  provisions  with  the  one  in 
question  were  inserted  in  the  acts  relating  to  Arkansas  and 
Kansas.  (5  U.  S.  Stats.  58;  12  Id.  126.)  The  real  purpose  of 
the  proviso  is  to  be  found  in  the  situation  of  the  country  em- 
braced in  the  Louisiana  purchase.  The  Treaty  of  Paris  of 
April  30th,  1803,  by  which  the  '  Province  of  Louisiana  '  was  ac- 
quired, stipulated  for  the  protection  of  private  property.  This 
comprehended  titles  which  were  complete  as  well  as  those 
awaiting  completion,  (Soulard  v.  United  States,  4  Peters,  511) 
and  Congress  adopted  the  appropriate  means  for  ascertaining 
and  confirming  them.  They  were  numerous  and  of  various 
grades,  and  covered  town  sites  and  every  species  of  lands.  In 
Missouri,  as  the  records  of  this  Court  show,  they  were  quite  ex- 
tensive ;  and  when  she  was  admitted  into  the  Union,  many  of 
these  titles  were  perfect,  and  still  a  large  number  imperfect.  In 
this  condition  of  things,  Congress  thought  proper,  in  granting 
the  salt-springs  to  the  State,  to  say  that  no  salt-springs,  the 
right  whereof  now  is  or  shall  be  confirmed  or  adjudged  to  any 
individual,  shall  pass  under  the  grant  to  the  State.  Whether 
this  legislation  was  necessary  to  save  salt-springs  claimed  under 
the  French  treaty,  it  is  not  important  to  determine,  but  mani- . 
festly  it  had  this  purpose  in  view  and  nothing  more.  It  could 
not  refer  to  salt-springs  not  thus  claimed,  because  all  entry 
upon  them  was  unlawful,  on  account  of  previous  reservation. 
It  speaks  of  confirmations  which  had  been  made  and  those 
which  were  awaiting  Governmental  action,  and  in  this  condition 
were  all  the  titles  the  United  States  were  bound  to  protect. 

"  Although  the  words  employed  in   the  first  division  of  the 
proviso  to  the  saline  grant  to  Nebraska  are  not  the  same  as 


56  RESERVATIONS    AND    EXCEPTIONS.  §  33 

those  used  in  the  Missouri  grant,  they  mean  the  same  thing. 
There  can  be  no  difference  between  a  right  which  has  been 
confirmed  and  one  which  is  now  vested.  Both  are  perfect  in 
themselves,  and  refer  to  completed  claims,  while  the  last  divi- 
sion in  each  proviso  has  reference  to  claims  in  course  of  com- 
pletion, but  not  finally  passed  upon.  This  proviso  can  have 
little  significance  in  the  Enabling  Act  of  Nebraska,  nor,  indeed, 
in  many  other  enabling  acts,  but  Congress  doubtless  thought 
proper  to  introduce  it  out  of  the  superabundance  of  caution,  as 
there  could  be  no  certainty  that  in  purchased  or  conquered  ter- 
ritory, however  remote  from  settlement,  there  might  not  be 
private  claims  protected  by  treaty  stipulations  to  which  it 
would  be  applicable.  It  cannot  be  invoked,  however,  for  the 
protection  of  these  plaintiffs.  When  a  vested  right  is  spoken 
of  in  a  statute,  it  means  a  right  lawfully  vested,  and  this  ex- 
cludes the  locations  in  question,  for  they  were  made  on  lands 
reserved  from  sale  or  entry.  If  Congress  had  intended  to  ratify 
invalid  entries  like  these,  they  would  have  used  the  language  of 
ratification.  Instead  of  doing  this,  the  language  actually  em- 
ployed negatives  any  idea  that  Congress  intended  to  give  valid- 
ity to  any  unauthorized  location  on  the  public  lands. 

"  The  pre-emption  act  of  the  4th  of  September,  1841,  (5 
Stats.  456)  declares  that  '  no  lands  on  which  are  situated 
any  known  salines  or  mines  shall  be  liable  to  entry,'  differing 
in  this  respect  from  the  Acts  of  1796  and  1854,  which  reserve 
every  '  salt-spring  '  and  '  salines.'  The  salines  in  this  case 
were  not  hidden,  as  mines  often  are,  but  were  soincrusted  with 
sail  thai  they  resembled  '  snow-covered  lakes,'  and  were  conse- 
quently not  subject  to  pre-emption.  Can  it  be  supposed  that  a 
privilege  denied  to  pre-emptors  in  Nebraska  was  conceded  in 
the  Act  of  1864  to  persons  less  meritorious? 

"  It.  appears,  by  the  record,  that  on  the  survey  of  the  Nebraska 
country,  the  salines  in  question  were  noted  on  the  field-books, 
but  these  notes  were  not  transmitted  to  the  registers'  general 
plats,  and  it  is  argued  that  the  failure  to  do  this  gave  a  right  of 
entry.  Bui  QOl  80,  for  the  wor.ls  of  the  statute  are  general,  and 
re  erve  from  sale  or  location  <ill  salines,  whether  marked  on  the 
plate  or  not. 

"  \Vli;it  efrec!  I  lie  statute  mi'-lit  have  on  salines  hidden  in  the 


§  33  RESERVATIONS    AND    EXCEPTIONS.  57 

earth,  not  known  to  the  surveyor  or  the  locator,  but  discovered 
after  entry,  may  become  a  question  in  another  case.  It  does 
not  arise  in  this.  Here  the  salines  were  not  only  noted  on  the 
field-books,  but  were  palpable  to  the  eye.  Besides  this,  the 
locators  of  the  warrants,  before  they  made  their  entries,  were 
told  of  the  character  of  the  lands.  Indeed,  it  is  quite  clear  that 
the  lands  were  entered  solely  on  account  of  the  rich  deposits  of 
salt  which  they  were  supposed  to  contain. 

"  It  does  not  strengthen  the  case  of  the  plaintiffs  that  they 
obtained  certificates  of  entry,  and  that  patents  were  subsequently 
issued  on  these  certificates.  It  has  been  repeatedly  decided  by 
this  Court  that  patents  for  lands  which  have  been  previously 
granted,  reserved  from  sale,  or  appropriated,  are  void.  (Polk 
v.  Wendell,  9  Cranch,  99  ;  Minter  v.  Cromelin,  18  Howard,  88  ; 
Reichart  v.  Felps,  6  Wallace,  160.)  The  executive  officers  had 
no  authority  to  issue  a  patent  for  the  lands  in  controversy,  be- 
cause they  were  not  subject  to  entry,  having  been  previously 
reserved,  and  this  want  of  power  may  be  proved  by  a  defend- 
ant in  an  action  at  law.     (Minter  v.  Cromelin,  Supra.)" 

The  judgment  of  the  Supreme  Court  of  Nebraska  was  affirmed. 

The  fact  that  a  salt-spring  exists  upon  a  quarter-section  with- 
draws the  tract  from  the  operation  of  the  Homestead  and  Pre- 
emption Laws.  A  hearing  to  prove  that  the  land  is  agricul- 
tural was  not  permitted  where  the  township  plats  showed  the 
existence  of  the  salt-spring,  and  it  was  not  alleged  that  the 
Surveyor-General's  return  was  incorrect  in  regard  to  the  loca- 
tion of  the  springs.1 

,  i  See  Sec.  2258,  2289,  Rev.  St.;  Decision  of  Commissioner,  Nov.  5th,  1875;  2 
Copp's  Land-owner,  131.  Since  the  above  decisions  were  rendered,  an  act  of 
Congress  has  been  passed  providing  for  the  sale  of  saline  lands.  The  text  is  as- 
follows  :  "  An  Act  providing  for  the  sale  of  saline  lands.  Be  it  enacted  by  the 
Senate  and  House  of  Representatives  of  the  United  States  of  America  in  Congress 
assembled,  That  whenever  it  shall  be  made  appear  to  the  register  and  receiver  of 
any  land  office  of  the  United  States  that  any  lands  within  their  district  are 
saline  in  character,  it  shall  be  the  duty  of  said  register  and  said  receiver,  under 
the  regulations  of  the  General  Land  Office,  to  take  testimony  in  reference  to 
such  lands  to  ascertain  their  true  character  and  to  report  the  same  to  the  Gen- 
eral Land  Office  ;  and  if,  upon  such  testimony,  the  Commissioner  of  the  General 
Land  Office  shall  find  that  such  lands  are  saline  and  incapable  of  being  purchased 
under  any  of  the  laws  of  the  United  States  relative  to  the  public  domain,  then, 
and  in  such  case,  such  lands  shall  be  offered  for  sale  by  public  auction  at  the 
local  land  office  of  the  district  in  which  the  same  shall  be  situated,  under  such 
regulations  as  shall  be  prescribed  by  the  Commissioner  of  the  General   Laud 


58  RESERVATIONS    AND    EXCEPTIONS.  §  34 

§  34.  School  lands  containing  minerals. — The  question  as 
to  the  ownership  (State  or  National)  of  school  lands  has  recently 
been  passed  upon  by  the  Supreme  Court  of  the  United  States 
in  a  very  important  case,1  that  of  Sherman  v.  Buick,  in  which 
the  plaintiff  in  error,  who  was  plaintiff  in  the  action,  brought 
his  suit  in  the  proper  Court  of  the  State  of  California  to  recover 
possession  of  a  piece  of  land  of  the  defendant  in  error.  On  the 
trial,  the  plaintiff  asserted  title  under  a  patent  from  the  United 
States,  of  the  date  of  May  15th,  1869,  and  the  defendant  under 
a  patent  from  the  State  of  California,  of  the  date  of  January 
6th,  1869.  The  land  in  question  was  a  part  of  Sec.  36,  township 
5  south,  range  1  east,  Mt.  Diablo  Meridian,  and  the  title  of  the 
State  was  supposed  to  rest  on  the  Act  of  Congress  of  March 
3d,  1853,  (10  U.  S.  Stats.  246)  granting  to  said  State  for  school 
purposes,  with  certain  limitations,  every  sixteenth  and  thirty- 
sixth  section,  according  to  the  surveys  thereafter  to  be  made 
of  the  public  lands. 

The  plaintiff,  in  aid  of  his  patent  and  to  defeat  the  title  of 
the  State  under  the  Act  of  1853,  offered  to  prove  that  he  settled 
upon  the  land  described  in  his  patent  as  early  as  December  20th, 
1862,  and  had  ever  since  resided  on  it;  that  the  land  was  not 
surveyed  until  August  11th,  1866,  and  that  he  filed  and  proved 
his  pre-emption  claim  to  it,  November  6th,  1866,  and  paid  for 
and  received  a  patent  certificate,  on  which  his  patent  was  duly 
issued. 

i  Iffice,  and  sold  to  the  highest  bidder  for  cash,  at  a  price  not  less  thanonedollar 
and  twenty-five  cents  per  acre  ;  and  in  case  said  lands  fail  to  sell  when  so  offered, 
then  tin-  same  shall  be  subject  to  private  sale,  at  such  land  office,  for  cash,  at  a 
price  no t  less  than  oik-  dollar  and  twenty-live  cents  per  acre,  in  the  same  man- 
ner as  other  lands  of  the  United  States  are  sold;  Provided,  That  the  foregoing 
enactments  shall  not  apply  to  any  State  or  Territory  which  has  not  had  a  grant 
Line  i  by  act  of  Congress,  nor  to  any  State  which  may  have  had  such  a 
grant,  until  either  the  grant  has  been  fully  satisfied,  or  the  right  of  selection 
thereundei  has  expired  by  efflux  of  time.  But  nothing  in  this  act  shall  author- 
ize the  sal'-  nr  conveyance  of  any  title  other  than  such  as  the  United  states  has, 
and  the  patent  4  issued  shall  he  in  the  I'unn  of  a,  release  and  quit-claim  of  all  title 
of  the  United  States  in  such  lands. 

"  See.  2.  That  all  executive  proclamal  ions  relating  to  the  sales  of  Public  Lands 

shall  In-  published  in  only ■  newspaper,  the  same  to  lie  printed  and  published 

in  the  Stat.-  or  Territory  where  tint  lands  are  situated,  and  to  be  designated  by 
the  Becretai  j  of  t he  Interior. 

'■  \  pppe. '  'I,  January  12,  1877." 

1  NO.  r;,  Oct.  3d,  1876,  3Copp'a  Land-owner,  j^">,  to  be  reported  in  about  tho 
U  or  nh  v.l.  of  Otto,  93 or 94  U.  S.  R. 


§  34  RESERVATIONS    AND    EXCEPTIONS.  59 

The  Court  excluded  this  evidence  and  gave  judgment  for  de- 
fendant, and  the  Supreme  Court  of  California  affirmed  that 
judgment. 

The  contest  in  the  case  was  between  a  patent  of  the  United 
States  and  a  patent  of  the  State  of  California,  and  the  decision 
required  a  construction  of  the  Act  of  1853,  so  far  as  to  determine 
which  of  these  patents  conveyed  the  real  title  under  the  facts 
offered  in  evidence. 

The  statute  is  entitled  "  An  Act  to  provide  for  the  survey  of 
the  public  lands  in  California,  the  granting  of  pre-emption  rights 
therein,  and  for  other  purposes." 1 

It  is  the  first  act  of  Congress  which  extends  the  land  system 
of  the  United  States  over  the  newly  acquired  territory  of  that 
State.  It  provided  for  surveys,  for  sales,  for  the  protection  of 
the  rights  of  settlers,  miners,  and  others ;  and  among  the  other 
purposes  mentioned  in  the  caption,  for  the  donations  to  the  State 
of  lands  for  schools  and  for  public  buildings. 

The  importance  of  the  subject  is  such  that  the  following  full 
extract  is  given  from  the  opinion  of  Mr.  Justice  Miller,  who 
delivered  the  opinion  of  the  Court : 

"  The  sixth  and  seventh  sections  of  the  act  are  of  chief  im- 
portance in  the  matter  under  consideration  ;  the  preceding  sec- 
tions having  provided  for  surveying  all  the  lands.  The  clause 
of  the  sixth  section,  in  which  the  grant  to  the  State  of  the  six- 
teenth and  thirty-sixth  sections  for  school  purposes  is  found, 
reads  as  follows :  '  All  the  public  lands  in  the  State  of  Califor- 
nia, whether  surveyed  or  unsurveyed,  with  the  exception  of 
sections  sixteen  and  thirty-six,  which  shall  be,  and  hereby  are, 
granted  to  the  State  for  the  purposes  of  public  schools  in  each 
township ;  and  with  the  exception  of  lands  appropriated  under 
this  act,  or  reserved  by  competent  authority,  and  excepting,  also, 
the  lands  claimed  under  any  foreign  grant  or  title,  and  the  min- 
eral lands,  shall  be  subject  to  the  pre-emption  laws  of  fourth  of 
September,  eighteen  hundred  and  forty-one,  with  all  the  excep- 
tions, conditions  and  limitations  therein,  except  as  is  herein 
otherwise  provided;  and  shall,  after  the  plats  thereof  are  re- 
turned to  the  office  of  the  register,  be  offered  for  sale,  after  six 

1 10  U.  S.  Stats.  244.  See,  also,  Huff  v.  Doyle,  No.  G61,  Oct.  Term,  1876,  to  he  re- 
ported in  93  or  94  U.  S.  R.  Supreme  Court  of  the  United  States. 


60  RESERVATIONS    AND    EXCEPTIONS.  §  34 

months'  public  notice  in  the  State  of  the  time  and  place  of  sale 
under  the  laws,  rules,  and  regulations  now  governing  such  sales, 
or  such  as  may  be  hereafter  prescribed.'  Then  come  several 
provisos  which  we  will  consider  hereafter,  but  we  pause  here 
to  note  the  effect  of  this  granting  and  excepting  clause  on  the 
lands  which  should,  by  the  future  surveys  of  the  Government, 
be  found  to  be  sections  sixteen  and  thirty-six. 

"It  is  obviously  the  main  purpose  of  the  section  to  declare, 
that  after  the  lands  are  surveyed  they  shall  be  subject  to  sale 
according  to  the  general  land  system  of  the  Government ;  and 
secondly,  to  subject  them  to  the  right  of  pre-emption  as  defined 
by  the  Act  of  1841,  and  to  extend  that  right  to  lands  unsur- 
veyed  as  well  as  to  those  surveyed.  But  here  it  seemed  to 
occur  to  the  framer  of  the  act,  that  California,  like  other  States 
in  which  public  lands  lay,  ought  to  have  the  sixteenth  and 
thirty-sixth  sections  of  each  township  for  school  purposes,  and 
that  they  should  not  be  liable  to  the  general  pre-emption  law  as 
other  public  lands  of  the  Government  would  be.  He  accord- 
ingly injected  into  the  sentence  the  grant  of  these  lands  to  the 
State  and  the  exception  of  them  from  the  operation  of  the  Pre- 
emption Law  of  1841,  together  with  other  lands  which  in  like 
manner  were  neither  to  be  sold  nor  made  subject  to  pre-emption. 
These  were  lands  appropriated  under  the  authority  of  that  act, 
or  reserved  by  competent  authority  ;  lands  claimed  under  any 
foreign  grant  or  title,  (i.  c,  Mexican  grants)  and  mineral  lands; 
all  these  were  by  this  clause  exempted  from  sale  and  from  the 
general  operation  of  the  pre-emption  laws. 

"  But  the  experience  of  the  operation  of  our  land  system  in 
other  States  suggested  that  it  might  be  ten  or  twenty  and  in 
-ome  instances  thirty  years  before  all  the  surveys  would  be 
completed  and  the  precise  location  of  each  school  section  known. 
In  the  meantime,  the  State  was  rapidly  filling  up  by  actual  set- 
tler- on  these  lands,  whose  necessities  required  improvements,  and 
thai  those  improvements,  when  found  to  be  located  on  a  school 
section,  should   have  some  protection.      What   this   protection 

mould  he,  and  how  the  rights  of  the  Stale  should  be  also  pro- 
tected, and  the  relative  rights  of  the  settler  and  of  the  State 
under  these  circumstances,  is  a  subject  of  a  distinct  section  of 
the  net — the  one  succeeding  thai  we  have  just  considered. 


§  34  RESERVATIONS    AND    EXCEPTIONS.  61 

"  That  section  (Sec.  7)  provides  :  '  That  when  any  settlement, 
by  the  erection  of  a  dwelling-house,  or  the  cultivation  of  any  por- 
tion of  the  land,  shall  be  made  upon  the  sixteenth  and  thirty-sixth 
sections  before  the  same  shall  be  surveyed,  or  when  such  sections 
may  be  reserved  for  public  uses,  or  taken  by  private  claims,  other 
lands  shall  be  selected  by  the  proper  authorities  of  the  State  in 
lieu  thereof.'  That  it  was  the  purpose  of  this  section  to  pro- 
vide a  rule  for  the  exercise  of  the  right  of  pre-emption  to  the 
school  lands  granted  by  the  previous  section  cannot  be  doubted. 
The  reason  for  this  is  equally  clear,  namely,  that  these  lands 
were  not  only  granted  away  by  the  preceding  section  and  in- 
choate rights  conferred  on  the  State,  but  they  were,  with  other 
classes  of  lands,  by  express  terms  excepted  out  of  the  opera- 
tion of  the  pre-emption  laws  which  it  was  a  principal  object  of 
that  section  to  extend  to  the  public  lands  of  California  gen- 
erally. 

"  Whether  a  settler  on  these  school  lands  must  have  all  the 
qualifications  required  by  the  Act  of  1841,  as  being  the  head  of 
a  family,  a  citizen  of  the  United  States,  etc.,  or  whether  the 
settlement,  occupation,  and  cultivation  must  be  precisely  the 
same  as  required  by  that  act,  we  need  not  stop  to  inquire.  It 
is  very  plain  that  by  the  seventh  section,  so  far  as  related  to  the 
dates  of  the  settlement,  it  was  sufficient  if  it  was  found  to  ex- 
ist at  the  time  the  surveys  were  made  which  determined  its 
locality ;  and  as  to  its  nature,  that  it  was  sufficient  if  it  was  by 
the  erection  of  a  dwelling-house,  or  by  the  cultivation  of  any 
portion  of  the  land.  These  things  being  found  to  exist  when 
the  survey  ascertained  their  location  on  a  school  section,  the 
claim  of  the  State  to  that  particular  piece  of  land  was  at  an 
end ;  and  being  shown  in  the  proper  mode  to  the  proper  officer 
of  the  United  States,  the  right  of  the  State  to  that  land  was 
gone,  and  in  lieu  of  it  she  had  acquired  the  right  to  select  other 
land  agreeably  to  the  Act  of  1826,  subject  to  the  approval  of 
the  Secretary  of  the  Interior. 

"  But  it  is  said  that  the  right  of  pre-emption  thus  granted  by 
the  seventh  section  was  subject  to  the  limitation  prescribed  by 
the  third  proviso  to  the  sixth  section,  namely,  '  that  nothing  in 
this  act  shall  be  construed  to  authorize  any  settlement  to  be 
made  on  any  public  lands  not  surveyed,  unless  the  same  be  made 


62  RESERVATIONS    AND    EXCEPTIONS  §  34 

within  one  year  from  the  passage  of  this  act ;  nor  shall  any  right 
of  such  settler  be  recognized  by  virtue  of  any  settlement  or  im- 
provement made  of  such  unsurveyed  lands  subsequent  to  that 
day.'  And  such  was  the  opinion  of  the  Supreme  Court  of 
California.  And  that  Court,  assuming  this  to  be  true,  further 
held  that  the  grant  made  by  the  act  of  the  school  sections  was 
a  present  grant,  vesting  the  title  in  the  State  to  the  sixteenth 
and  thirty-sixth  sections  absolutely,  as  fast  as  the  townships 
were  surveyed  and  sectionized.  (Higgins  v.  Houghton,  25  Cal. 
252.)  As  a  deduction  from  these  premises,  it  held  that  the  right 
to  pre-emption  on  these  lands  expired  with  the  lapse  of  the  year 
from  the  passage  of  the  act,  and  that  no  subsecpient  act  of  Con- 
gress could  revive  or  extend  it,  even  if  it  was  so  intended. 

"  But  we  are  of  opinion  that  the  first  of  this  series  of  prop- 
ositions is  untenable. 

"  The  terms  of  the  proviso  to  the  sixth  section  and  those  of 
the  seventh  section,  if  to  be  applied  to  the  same  class  of  lands, 
are  in  conflict  with  each  other.  The  one  says  that  if  settlement 
be  made  on  land  before  the  survey,  which  by  that  survey  is  found 
to  be  on  the  sixteenth  or  thirty-sixth  section,  the  settlement  shall 
be  protected.  The  other  says  that  no  settlement  shall  be  pro- 
tected unless  made  within  one  year  after  the  passage  of  the  act. 
In  view  of  the  well-known  fact  that  none  of  these  surveys  would 
be  completed  under  several  years,  the  provision  of  the  seventh 
section  was  a  useless  and  barren  concession  to  the  settler,  if  to 
be  exercised  within  a  year  ;  and  in  the  history  of  land  titles  in 
that  State  would  have  amounted  to  nothing.  This  apparent 
conflict  is  reconciled  by  holding  to  the  natural  construction  of 
the  language  and  the  reasonable  purpose  of  Congress,  by  which 
the  limitation  of  one  year  to  the  right  of  pre-emption  in  the 
sixth  section,  is  applicable  alone  to  the  general  body  of  the  pub- 
lic lands  not  granted  away,  and  not  excepted  out  of  the  oper- 
ation of  the  Pre-emption  Law  of  1841,  as  the  school  lands  were 
by  the  very  terms  of  the  previous  part  of  the  section;  while 
section  -inch  is  left  to  control  the  right  of  pre-emption  to  the 
school  section-,  as  il   purports  to  do. 

"  In  this  view  of  the  matter,  the  very  learned  argument  of 
counsel  on  the  question  of  the  character  of  the  grant,  as  to  the 
time  when  the  title  vests  in  the  State,  and  the  copious  reference 


§  84  RESERVATIONS    AND    EXCEPTIONS.  63 

to  the  acts  of  Congress  and  of  the  State  as  authorizing  pre- 
emption after  the  expiration  of  one  year  from  the  date  of  the 
statute,  are  immaterial  to  the  issue.  Actual  settlement  before 
survey  made  accompanied  the  grant  as  a  qualifying  limitation 
of  the  right  of  the  State,  which  she  was  bound  to  recognize 
Avheii  it  was  found  to  exist,  and  for  which  she  was  authorized 
to  seek  indemnity  in  another  quarter.  There  is,  therefore,  no 
necessity  for  any  additional  legislation  by  Congress  to  secure  the 
pre-emption  right  as  to  school  sections,  and  no  question  as  to 
whether  it  has  so  legislated,  or  whether  such  legislation  would 
be  valid,  and  we  do  not  enter  on  those  questions. 

"  No  question  is  made  in  the  argument  here,  none  seems  to 
have  been  made  in  the  Supreme  Court  of  the  State,  and  none  is 
to  be  found  in  its  opinion  in  the  case,  as  to  the  admissibility  of 
the  rejected  testimony,  if  the  fact  which  it  sought  to  establish 
could  be  recognized  by  the  Court.  Nor  do  we  think  such  ob- 
jection, if  made,  is  sustainable.  The  testimony  offered  does  not 
go  to  impeach  or  contradict  the  patent  of  the  United  States,  or 
vary  its  meaning.  Its  object  was  to  show  that  the  State  of  Cal- 
ifornia, when  she  made  her  conveyance  of  the  land  to  defendant, 
had  no  title  to  it.  That  she  never  had,  and  that  by  the  terms 
of  the  act  of  Congress  under  which  she  claimed,  the  only  right 
she  ever  had  in  regard  to  this  tract  was  to  seek  other  land  in 
lieu  of  it.  The  effect  of  the  evidence  was  to  show  that  the  ti- 
tle set  up  by  defendant  under  the  State  was  void — not  merely 
voidable,  but  void  ah  initio.  For  this  purpose  it  was  competent 
and  it  was  sufficient,  for  it  showed  that  when  the  survey  was 
actually  made,  and  the  land  in  question  was  found  to  be  part  of 
section  thirty-six,  plaintiff  had  made  a  settlement  on  it,  within 
the  meaning  of  the  seventh  section  of  the  Act  of  1853,  and  the 
State  could  do  nothing  but  seek  indemnity  in  other  land. 

"  It  has  always  been  held  that  an  absolute  want  of  power  to 
issue  a  patent  could  be  shown  in  a  Court  of  Law  to  defeat  a  title 
set  up  under  it,  though  where  it  is  merely  voidable  the  party 
may  be  compelled  to  resort  to  a  Court  of  Equity  to  have  it  so 
declared.  (Stodard  v.  Chambers,  2  How.  317  ;  Easton  v.  Salis- 
bury, 21  How.  426  ;  Reichart  v.  Felps,  6  Wall.  160.)" 

The  judgment  was  reversed  and  case  remanded  to  the  Supreme 


64  RESERVATIONS    AND    EXCEPTIONS.  §  34 

Court  of  California,  with  direction  to  order  a  new  trial  in  con- 
formity co  the  principles  of  the  opinion.1 

!The  Supreme  Court  of  California  held  (45  Cal.  65G)  that  the  title  to  each  six- 
teenth and  thirty-sixth  section  upon  its  being  surveyed  vested  absolutely  in  the 
State  of  California;  that  Congress  had  no  power,  after  the  passage  of  that 
act,  to  impair  the  grant  or  prevent  the  title  to  those  sections,  upon  their  being  sur- 
veyed, from  vesting  in  the  State,  and  that  therefore  the  Act  of  Congress  of  May 
30th,  1862,  (12  U.  S.  Stats.  409}  did  not  have  the  effect  to  extend  the  right  of  pre- 
emption over  those  sections. 

In  arriving  at  this  conclusion,  the  Court  followed  the  doctrine  laid  down  in 
Higgins  v.  Houghton,  25  Cal.  252.  to  the  effect  that  the  Act  of  Congress  of  March 
3d,  185:'.,  vested  in  this  State  the  title  to  the  sixteenth  and  thirty-sixth  sections 
iu  each  township;  that  the  power  of  locating  the  land  granted  by  means  of  a 
survey  of  the  public  lands  was  reserved  to  the  General  Government,  and  "  as 
fast  as  townships  thereafter  were  surveyed  and  sectionized,  that  the  State  be- 
came the  owner  of  the  sixteenth  and  thirty-sixth  sections  absolutely,  not  only 
as  to  quality,  but  as  to  position  also  "  ;  and  "  that  by  the  grant  of  the  sixteenth 
and  thirty-sixth  sections  to  the  State  in  full  property,  they  were  effectually 
withdrawn  from  the  operation  of  the  acts  relating  to  pre-emptions."  In  the  lat- 
ter case  the  lands  were  mineral  lands.  The  grants,  so  far  as  respects  the  location  of 
the  lands  granted,  were  held  to  be  subject  to  the  exception  of  lands  reserved  by 
competent  authority,  and  lands  to  which  a  valid  right  of  pre-emption  should  at- 
tach, itnder  the  provisions  of  the  act,  prior  to  the  survey,  that  is  to  say,  the 
lands  to  which  a  valid  right  of  pre-emption  might  be  acquired  by  means  of  a 
settlement  which  had  already  been  made,  or  which  might  be  made  within  one 
year  after  the  passage  of  the  act.  (See  Higgins  v.  Houghton,  25  Cal.  252;  Doll 
r.  Meador,  10  Cal.  296;  Van  Valkenburg  v.  McCloud,  21  Cal.  330;  Foley  v.  Har- 
rison, 15  How.  417.) 

The  words  of  the  Swamp  Laud  Act  of  Congress  of  the  28th  September,  1850, 
are  that  the  lands  "  shall  be  and  the  same  are  hereby  granted  to  said  State." 
And  these  wind-;  were  held  to  constitute  a  grant  in  presenti  in  the  following 
cases:  Summers  v.  Dickinson,  9  Cal.  554;  Owen  v.  Jackson,  Ibid.  322;  Keeran  v. 
Griffith,  27  <  !al.  87;  Robinson  v.  Forrest,  29  Cal.  317. 

The  ease  of  Sherman  v.  Buiek,  Supra,  is  followed  in  the  still  later  case  of  Mor- 
row '■.  Kingsbury,  Oct.  7th,  1875,  Supreme  Court  of  California,  No.  4504,  not  re- 
ported.    iSee  Finney  v.  Berger,  50  Cal.  218.) 

The  ruling  upon  this  important  subject  in  the  General  Land  Office  of  the 
United  states  should  be  referred  to. 

The  question  arose  in  the  Keystone  Case,  which  involved  the  right  of  the  State 
,,i  Calif ornia  to  school  sections  which  are  mineral  in  character. 

Bee  Keystone  <  !ase,  I  »ecision  of  Commissioner  of  Land  Office,  June  18th,  1872; 
Report  of  Secretary  of  Inferior,  1873,  'jl  ;  Copp's  U.  S.  Mining  Decisions,  p.  105; 
Decision  of  Secretary  of  Interior  affirming  the  decision  of  the  Commissioner, 
April28th,  187:;-.  Benortof  Becretary  of  Interior,  1873,  24;  Copp's  U.  S.  Mining 
I  >ecisions,  p.  109. 

The  controversy  arose  between  certain  mining  claimants,  the  town  of  Ama- 
dor, Amador  County,  Cal.,  and  the  grantee  of  the  State  of  California,  of  a  por- 
tion of  a  thirty-sixth  section.  The  question  was  as  to  the  right  of  the  State  of 
California,  under  the  grant  of  March3d,  L853,  to  lands  found  upon  survey  to  bo 
aumericallj  d<  Ignated  under  the  public  land  system  as  Sees.  10  and  30,  where 
i  in-  date  of  such  survey  and  designation,  in  the  bona  fide 
possef   Ion  of  parties  properly  qualified,  who  claimed  the  right  of  having  the 


§34 


RESERVATIONS    AND    EXCEPTIONS.  65 


In  the  construction  of  the  Act  of  1853,  therefore,  it  must  be 
considered  as  settled  that  the  school  sections,  sixteen  and  thirty- 
mining  and  town-site  laws  of  the  United  States  executed  in  their  favor.  There 
had  been  a  decision  in  the  case  of  Cooper  v.  Roberts,  18  How.  173,  affirming  the 
right  of  the  State  of  Michigan  to  certain  copper-bearing  lands  in  School  Sec.  16, 
in  that  State. 

The  Commissioner  drew  a  distinction  between  the  acts  applicable  to  Michigan — 
the  Act  of  June  23d,  183G,  (5  U.  S.  Stats,  at  L.  59)  and  the  act  applicable  to 
California — the  Act  of  1853,  Supra. 

He  referred  to  the  inhibition  in  the  latter,  Sec.  6,  against  the  survey  of  any- 
other  than  township  lines,  "where  the  lands  are  mineral,"  and  remarked  that 
this  inhibition  was  not  repealed  by  Congress  until  the  passage  of  the  laws  of 
July  2Gth,  18GG,  and  July  9th,  1870,  commonly  known  as  the  "  mining  acts,"  which 
provided  for  extending  the  United  States  surveys  to  mineral  lands.  He  said  it 
was  not  easily  understood  how  the  sixth  section  of  the  Act  of  1853  could  be 
construed  to  be  a  present  grant  of  Sees.  16  and  36  of  lands  which  were,  by  the 
second  section  of  the  same  act,  expressly  excluded  from  survey,  as  mineral. 
The  Commissioner  reviewed  the  seventh  section  of  the  Act  of  1853,  and  the  Act 
of  July,  1866—  the  first  "mining  act " — and  ruled  that  prior  to  the  7th  of  October, 
1870,  (the  date  of  filing  the  plat  of  the  township)  the  land  in  controversy  formed 
a  part  of  the  unsurveyed  mineral  lands  of  the  public  domain,  and  that  parties 
who  were  in  the  actual  occupancy  and  possession  of  mining  claims,  under  local 
regulations,  in  said  subdivision  at  the  date  of  the  filing  of  the  township  plat, 
were  in  such  occupancy  and  possession  under  authority  of  the  Statute  of  July 
26th,  I860,  and  that  they  or  their  grantees,  upon  compliance  with  the  mining 
laws  of  Congress,  would  be  entitled  to  patents  for  their  respective  claims,  the 
same  as  if  they  were  upon  unsurveyed  lands,  or  within  sections  other  than, 
sixteen  or  thirty-six. 

In  affirming  this  ruling,  the  Secretary  of  the  Interior  said  that  it  was  conceded, 
upon  the  facts,  that  each  of  the  mining  companies  was  entitled  to  a  patent, 
unless  the  title  to  the  half-section  was  vested  in  the  State  of  California  or  its 
grantee,  and  assumed  that  in  every  valid  grant  there  must  be  a  grantor  capable 
of  making  the  grant,  a  grantee  capable  of  taking  it,  and  a  tiling  granted  capable 
of  identification  with  reasonable  certainty  ;  that  all  grants  made  by  the  General 
Government  to  individuals,  corporations,  or  States  are  to  be  construed  strictly 
against  the  grantee,  and  that  nothing  passes  by  implication  ;  that  the  intent  of 
the  law-makers  is  to  govern,  and  that  such  intent  is  to  be  gathered  from  the 
entire  act.     He  considered  these  three  questions  : 

1st.  "When  does  title  vest  in  the  State  to  Sees.  16  and  36  under  the  Act  of  1853? 

2d.  Does  the  seventh  section  except  from  the  grant  land  upon  which  settlement 
has  been  made  prior  to  survey,  for  other  purposes  than  pre-emption  appropriation  ? 

3d.  Does  the  grant  include  mineral  lands  in  Sees.  16  and  36  ? 

In  answer  to  the  first  epiery,  and  construing  the  sixth  section  of  the  act,  he 
held  that  it  was  a  grant  to  the  State  in  presenti,  in  the  nature  of  a  float,  taking 
effect  upon  specific  tracts  when  the  same  are  surveyed  by  the  United  States, 
and  not  before.  The  grant  is  in  words  de presenti;  but,  until  survey,  there  are 
no  tracts  or  parcels  of  land  in  existence  answering  to  the  calls  of  the  grant. 

The  grant  was  held  to  be  in  its  nature  the  same  as  that  usually  made  by  Congress 
to  railroad  companies,  to  aid  in  the  construction  of  their  roads.  These  grants 
are  generally  for  a  certain  number  of  sections,  designated  by  odd  numbers  on 
each  side  of  the  road,  with  a  provision  for  indemnity  selection,  in  case  any  of 

W.  C— 5. 


6Q  RESERVATIONS    AND    EXCEPTIONS.  §  34 

six,  granted  by  section  six  to  the  State,  are  also  excepted  from 
the   operation   of  the   Pre-emption  Law  governing  the   public 

such  sections  shall  have  been  sold,  or  otherwise  disposed  of,  prior  to  the  definite 
location  of  the  line. 

The  cases  o.f  Railroad  v.  Smith,  9  "Wallace,  99,  and  Railroad  v.  Fremont  Co.  9 
"Wallace,  90,  decided  that  these  grants  did  not  vest  any  right  in  the  companies 
to  specific  sections  until  the  line  of  the  road  was  definitely  fixed  on  the  face  of 
the  earth.  The  title  to  specific  tracts  vested  only  _n  the  happening  of  a  contin- 
gency— the  definite  location  of  the  road.  The  same  rule  was  applied  by  the 
Secretary  to  the  grant  to  the  State.  The  title  only  vested  upon  the  happening 
of  the  contingency  that  made  the  grant  certain  as  to  location,  viz.,  the  survey. 
As  sustaining  this  position  the  following  cases  were  cited  :  Gaines  v.  Nicholson, 
9  How.  3G5  ;  Cooper  v.  Roberts,  18  How.  173  ;  Kissellv.  St.  Louis  Public  Schools, 
18  How.  19;  Terry  v.  Megerle,  24  Cal.  G24  ;  Grayson  v.  Knight,  27  Cal.  507; 
Middleton  v.  Lowe,  30  Cal.  590  ;  West  v.  Cochran,  17  How.  413.  And  the  follow- 
ing cases,  relied  upon  in  opposition,  reviewed  :  Higgins  v.  Houghton,  Supra; 
Rutherford  v.  Green,  2  Wheat.  190  ;  Lessieur  v.  Price,  12  How.  59  ;  How  v. 
Missouri,  12  How.  120  ;  Veeder  v.  Guffey,  3  WTis.  520  ;  Sherman  v.  Buick,  45  Cal. 
Supra;  Van  Valkenbm-g  v.  McCloud,  21  Cal.  330. 

In  answering  the  second  question,  and  construing  the  seventh  section  of  the 
Act  of  1853,  the  Secretary  was  of  opinion  that  it  excepts  from  the  grant  to  the 
State  lands  upon  Sees.  10  and  30,  upon  which  any  settlement  by  the  erection  of 
a  building  or  buildings,  or  the  cultivation  of  any  portion  of  the  land,  has  been 
made  prior  to  survey. 

And  as  regards  the  third  proposition,  he  was  of  opinion  that  Congress,  by  the 
Act  of  1853,  did  not  intend  to  grant  and  did  not  grant  to  the  State  any  mineral 
lands  that,  by  survey,  are  shown  to  be  in  Sees.  10  and  30 — on  the  contrary,  the 
intention  to  reserve  those  lands  was  considered  apparent  from  the  act  itself. 
(Sees.  0,  8,  12,  13. ) 

The  Mining  Act  of  July  20th,  18GG,  was  regarded  as  providing  an  exclusive 
method  for  appropriating  the  mineral  lands  of  the  United  States.  It  was  the 
first  act  passed  by  Congress  undertaking  to  dispose  of  its  mineral  lands,  and  it 
made  no  exceptions  in  favor  of  school  or  other  grants. 

If  the  State  could  obtain  two  sections  in  every  mineral  township,  it  was  urged 
that  it,  might  establish  a  mineral  system  for  itself,  and  one  in  confiict  with  that 
of  the  General  Government.  It  was  held  that  such  was  not  the  intention  or 
Congress,  ami  no  mineral  lands  passed  by  the  grant. 

The  Keystone  <-:is<?  was  approved  in  Delaney  v.  Thomas,  Decision  of  Com- 
missioner, .June  25th,  1875  ;  2  Copp's  Land-owner,  50. 

'Hi.:  legislature  of  California,  by  the  Act  of  Feb.  3d,  1870,  Stats.  1875-G,  p.  20, 
and  tlie  Act  of  March  28th,  1874,  Stats.  1873-4,  p.  700,  did  indeed  provido  for  the 
"sale  of  the  mineral  lands  belonging  to  the  State,"  and  undertook  to  provide 
machinery  regulating  the  same.  It  provided  for  the  affidavit  for  purchase,  as 
to  who  should  he  preferred  purchasers;  for  contests  and  actions,  manner  of 
.sah:,  vested  rights,  patents,  and  payments. 

In  t  lie  General  Land  Office  a  ease  arose  in  relation  to  the  right  of  the  State  of 
Nevada  to  Si  is.  1G  and  36  of  each  township,  for  school  purposes,  when  such 
Bections  are  found  to  contain  mines. 
The  seventh  section  of  the  Enabling  Act  of  the  21st  of  March,  1804,  passed  at 

the  i  f  the  Thirty-eighth  Congress,  grants  to  said  State  said  sections, 

unless  sold  or  otherwi  .<■  disposed  of  by  any  act  of  Congress. 
Joint,  resolution  of  the  30th  of  .January,  1805,  (13  Stats.  5071  declares  that  no 


§  35  RESERVATIONS    AND    EXCEPTIONS.  67 

lands  generally.  That  under  the  seventh  section  providing  a 
rule  by  which  the  right  of  pre-emption  on  the  school  sections  is 
governed ;  a  settlement  is  protected,  if  the  surveys  ascertain  its 
location  to  be  on  a  school  section  when  those  surveys  are  made. 
The  only  right  then  conferred  on  the  State  is  to  select  other 
land  in  lieu  of  that  occupied. 

The  proviso  in  the  sixth  section  forbidding  pre-emption  on 
unsurveyed  lands,  after  one  year  from  the  date  of  passage  of 
the  act,  is  limited  to  the  lands  not  excepted  out  of  that  section, 
and  has  no  application  to  the  school  sections  excepted. 

§  35.   School  lands  containing  minerals,  in  Nevada. — 

The  question  whether  the  grant  of  school  lands  to  the  State 
of  Nevada  was  one  in  prazsenti  or  in  futuro,  was  presented  for 
decision  in  the  case  of  Ileydenfelt  v.  Daney  Gold  and  Silver 
Mining  Co.1  in  the  Supreme  Court  of  Nevada. 

The  Court,  however,  assumed,  for  the  purposes  of  the  decision, 
that  the  grant  took  effect  absolutely  upon  the  admission  of  the 
State  into  the  Union. 

The  case  was  an  action  of  ejectment  to  recover  a  portion  of 
the  west  half  of  the  southwest  quarter  of  section  sixteen,  town- 
ship sixteen,  range  twenty-one  east,  Mount  Diablo  base  and  me- 
ridian. The  plaintiff  claimed  title  under  a  patent  issued  to  his 
grantors  and  predecessors  in  interest  by  the  State  of  Nevada,  on 
the  14th  day  of  July,  1868,  under  and  by  virtue  of  the  statute 
authorizing  the  conveyance  of  lands  granted  to  the  State  by  the 
seventh  section  of  the  Enabling  Act  of  Congress,  entitled  "  An 
Act  to  enable  the  people  of  Nevada  to  form  a  constitution  and 

act  passed  at  the  first  session  of  the  Thirty-eighth  Congress,  granting  lands  to 
States  or  corporations,  to  aid  in  the  construction  of  roads,  ox  for  other  purposes, 
or  to  extend  the  time  of  grants  heretofore  made,  shall  be  so  construed  as  to 
embrace  mineral  lands,  which  in  all  cases  shall  be  and  are  reserved  exclusively 
to  the  United  States,  unless  "otherwise  specially  provided "  in  the  act  making 
the  grant. 

In  view  of  this  legislation,  and  of  the  considerations  set  forth,  it  was  held  to 
be  clear  that  an  executive  officer  must  regard  a  section  of  land  No.  1G  or  36, 
situated  in  Nevada,  and  "rich  in  minerals,"  as  the  property  of  the  United 
States,  and  not  as  passing  to  the  State  under  the  act.  (Decision  of  Secretary  of 
the  Interior,  May  20th,  1870  ;  Copp's  U.  S.  Mining  Decisions,  pp.  30,  31.) 

The  State  Register  was  allowed  to  select  other  lands  as  indemnity  when  school 
sections  Nos.  10  and  30  should  be  found  to  be  mineral.  (Decision  of  Commissioner 
of  General  Land  Office,  May  24th,  1870  ;  Copp's  U.  S.  Mining  Decisions,  pp.  30. 31.) 

1 10  Nevada,  290. 


68  RESERVATIONS    AND   EXCEPTIONS.  §  35 

State  government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,"  approved 
March  21st,  1864,  which  reads  as  follows  :  "  That  sections  num- 
bers sixteen  and  thirty-six  in  every  township,  and  where  such 
sections  have  been  sold  or  otherwise  disposed  of  by  any  act  of 
Congress,  other  lands  equivalent  thereto,  in  legal  subdivisions  of 
not  less  than  one-quarter  section,  and  as  contiguous  as  may  be, 
shall  be  and  are  hereby  granted  to  said  State  for  the  support  of 
common  schools."  (13  IT.  S.  Stat.  32 ;  Stat.  1864-5,  37.)  The 
defendant  claimed  title  under  a  patent  issued  to  it  by  the 
United  States,  on  the  7th  day  of  March,  1874,  under  and  by 
virtue  of  the  Act  of  Congress  entitled  "  An  Act  granting  the 
right  of  way  to  ditch  and  canal-owners  over  the  public  lands, 
and  for  other  purposes,"  approved  July  26th,  1866,  (14  U.  S. 
Stat.  251)  the  act  amendatory  thereof,  approved  July  9th,  1870, 
(16  U.  S.  Stat.  217)  and  the  act  entitled  "  An  Act  to  promote 
the  development  of  the  mining  resources  of  the  United  States," 
approved  May  10th,  1872  (17  U.  S.  Stat.  91). 

The  land  in  controversy  was  mineral  land,  and  the  defendant 
was  in  possession  of  the  same,  and  was  engaged  in  conducting 
and  carrying  on  the  business  of  mining  thereon,  and  had  erected 
improvements  thereon,  for  mining  purposes,  of  the  value  of  over 
$80,000.  In  the  year  1867,  prior  to  the  date  of  the  survey  or 
approval  of  the  survey  of  the  land  by  the  Government  of  the 
United  States,  the  grantors  and  predecessors  in  interest  of  de- 
fendant entered  upon  the  land  for  mining-  purposes,  and 
claimed  and  occupied  the  same  in  conformity  with  the  laws,  cus- 
toms, and  usages  of  miners  in  the  locality  and  mining  districts 
in  which  the  land  was  situate,  and  were  so  possessed  and  engaged 
in  mining  thereon  when  the  land  was  first  surveyed,  and  when 
the  State  issued  its  patent  to  the  grantors  and  predecessors  in 
interest  of  plaintiff. 

Two  leading  questions  were  presented  for  consideration  in  de- 
termining the  legal  rights  of  the  respective  parties  :  1st.  When 
does  the  title  vest  in  the  State  to  the  sixteenth  and  thirty-sixth 
sections  granted  by  the  seventh  section  of  the  Enabling  Act? 
2d.   Did  the  patenl   issued   by  the  State  include  mineral  lands? 

The  Court  did  not  deem  it  necessary  to  decide  whether  the 
grant  was  one  in  prcesenti  or  infuturo,  assuming,  for  the  sake 


§  35  RESERVATIONS    AND    EXCEPTIONS.  69 

of  the  argument,  that  the  proper  construction  to  be  given  to  the 
seventh  section  of  the  Enabling  Act  is,  that  the  grant  took 
effect  absolutely  upon  the  admission  of  this  State  into  the 
Union,  and  that  the  title  to  the  lands  then  vested  in  the  State, 
although  subsequent  proceedings  might,  as  was  said  in  Schulen- 
berg  v.  Harriman,  21  Wall.  62,  "  be  required  to  give  precision 
to  that  title  and  attach  it  to  specific  tracts,"  and  likewise  assum- 
ing that  Congress  had  no  power,  after  the  admission  of  the 
State  into  the  Union,  to  impair  the  grant,  without  the  consent 
of  the  State.  The  Court  said :  "  Still,  we  think  it  must  be 
admitted  that  Congress  could  thereafter,  with  the  consent  of 
this  State,  prior  to  the  disposal  by  the  State  of  any  of  the 
lands  embraced  in  said  sections,  and  at  any  time  prior  to  the 
survey,  change  the  terms  of  the  grant,  and  we  are  of  opinion 
that,  by  the  subsequent  act  of  Congress  and  the  act  of  accept- 
ance by  the  legislature  of  this  State,  the  mineral  lands  were 
reserved  from  sale  by  the  government  of  the  United  States, 
with  the  consent  of  this  State,  and  that  the  patent  issued  by 
this  State  did  not,  upon  the  admitted  facts  of  this  case,  include 
the  mineral  lands  in  controversy.  If  we  accept  the  definition 
announced  by  text-writers,  '  that  a  grant  is  a  contract ;  executed, 
it  is  true,  but  still  a  contract,'  (3  Parsons  on  Contracts,  527) 
and  it  was  so  decided  in  Fletcher  v.  Peck,  6  Cranch,  87,  it 
would  be  within  the  power  of  both  parties,  by  mutual  consent, 
to  modify  or  change  the  terms  of  the  contract  after  its  execu- 
tion ;  and  if  we  adopt  the  rule  as  stated  by  Field,  J.,  in  Schu- 
lenberg  v.  Harriman,  Supra,  that  '  a  legislative  grant  operates  as 
a  law  as  well  as  a  transfer  of  the  property,  and  has  such  force 
as  the  intent  of  the  legislature  requires,'  the  same  principle 
follows,  and  the  law  could  be  changed  or  modified  at  any  time 
by  the  consent  of  both  parties  before  the  rights  of  others  at- 
tached, certainly  this  must  be  true,  unless  there  is  some  consti- 
tutional provision  against  such  acts  of  legislation. 

"  In  Higgins  v.  Houghton,  25  Cal.  255,  where  it  was  held  that 
the  State  of  California,  by  virtue  of  the  grant  of  March  3d,  1853, 
which  in  some  respects  is  similar  to  the  grant  under  considera- 
tion, '  became  the  owner  of  the  sixteenth  and  thirty-sixth  sec- 
tions absolutely,  not  only  as  to  quantity,  but  as  to  position  also,' 
the  Court  impliedly  recognized  the  fact  that  it  was  within  the 


70  RESERVATIONS    AND    EXCEPTIONS.  §  35 

power  of  Congress  and  the  State  by  mutual  agreement  to 
change  the  provisions  of  the  grant.  After  stating  that  there 
had  been  no  legislation  by  Congress  prior  to  the  grant  which 
would  interfere  with  the  conclusions  reached  in  said  case,  the 
Court  said :  '  And  if  there  has  been  any  legislation  since  the 
grant  that  conflicts  with  the  conclusion,  it  must  be  null  and  void, 
unless,  indeed,  it  has  been  acceded  to  by  the  grantee.''  Here  such 
subsequent  legislation  was  had  by  Congress,  and  it  vias  acceded 
to  by  the  grantee. 

"  After  the  sixteenth  and  thirty-sixth  sections  had  been 
granted,  and  after  this  State  had  been  admitted  into  the  Union, 
Congress  passed  an  act  entitled  '  An  Act  concerning  certain 
lands  granted  to  the  State  of  Nevada,'  approved  July  4th,  18G6. 
After  confirming  the  appropriation  made  by  the  constitution  of 
this  State,  to  educational  purposes,  of  the  land  granted  to  this 
State  by  the  law  of  September  4th,  1841,  and  providing  for  the 
appointment  of  a  '  Surveyor-General  for  Nevada,'  who  was  to 
perform  certain  duties  therein  prescribed  under  the  direction  of 
the  Secretary  of  the  Interior,  it  was  further  enacted  :  '  That  in 
extending  the  surveys  of  the  public  lands  in  the  State  of  Ne- 
vada, the  Secretary  of  the  Interior  may,  in  his  discretion,  vary 
the  lines  of  the  subdivisions  from  a  rectangular  form  to  suit  the 
circumstances  of  the  country  ;  but  in  all  cases  lands  valuable 
for  mines  of  gold,  silver,  quicksilver,  or  copper  shall  be  reserved 
from  sale.'  (14  U.  S.  Stat.  85-6,  Sec.  5.)  This  State,  in  ac- 
cepting the  grant,  unequivocally  consented  to  the  reservation  by 
Congress  of  the  mineral  lands,  and  accepted  the  grant  with  all 
the  conditions  and  reservations  mentioned  in  said  section.  The 
act  passed  by  the  legislature  of  this  State,  entitled  '  An  Act  in 
relation  to  and  accepting  the  lands  granted  to  the  State  of  Ne- 
vada by  the  Government  of  the  United  States,'  approved  Feb- 
ruary  L3th,  1807,  is  explicit  upon  this  point.  It  reads  as  fol- 
lows : 

"  '  Sec.  1.  The  State  of  Nevada  hereby  accepts  the  grants  of 
lands  made  by  the  Government  of  the  United  States  to  this 
State,  in  i  lie  following  acts  of  Congress,  to  wit:  "An  Aet  do- 
nating public  lands  to  the  several  States  and  Territories  which 
may  provide  colleges  for  the  benefit  of  agriculture  and  the  me- 
chanic  arte,"  approved  .Inly  2d,  1802,  as  amended  and  approved 


§  35  RESERVATIONS    AND    EXCEPTIONS.  71 

April  14th,  18G4,  and  as  extended  July  4th,  1866,  by  an  act  en- 
titled "  An  Act  concerning  certain  lands  granted  to  the  State 
of  Nevada,"  upon  the  terms  and  conditions  in  said  acts  expressed, 
and  agrees  to  comply  therewith. 

"  '  Sec.  2.  The  State  of  Nevada  hereby  accepts  the  grants  of 
lands  made  by  the  Government  of  the  United  States  to  this 
State,  in  the  Act  of  Congress  entitled  "  An  Act  concerning  cer- 
tain lands  granted  to  the  State  of  Nevada,"  approved  July  4th, 
1866,  upon  the  terms  and  conditions  in  said  act  expressed,  and 
agrees  to  comply  therewith. 

"  '  Sec.  3.  The  State  of  Nevada  hereby  accepts  all  grants  of 
public  lands  heretofore  made  by  the  Government  of  the  United 
States  to  this  State,  upon  the  terms  and  conditions  so  granted, 
as  modified  in  the  Act  of  July  4:th,  1866,  above  in  this  act  re- 
ferred to.'     (Stat.  1867,'57.)   " 

"  This  act  was  passed  prior  to  the  survey,  by  the  United 
States,  of  the  land  in  controversy,  which,  from  the  record  in  this 
case,  is  shown  to  have  been  made  in  August,  1867c 

"  This  State,  by  its  act  of  acceptance  of  the  grant  as  modi- 
fied by  the  Act  of  Congress  of  July  4th,  1866,  was  estopped 
from  thereafter  claiming  title  to  any  lands  valuable  for  mines  of 
gold,  silver,  quicksilver,  or  copper,  for  such  lands  were,  by  said 
act,  expressly  reserved  from  sale.  It  is  evident  that  when  Con- 
gress passed  the  Act  of  July  4th,  1866,  it  thought  that,  by  the 
effect  of  the  grant  and  the  law  of  the  event,  that  this  State 
would  not  acquire  an  absolute  ownership  in  the  lands  until  the 
surveys  were  made  ;  but  even  if  it  was  mistaken  as  to  the  legal 
effect  of  the  grant,  its  action  received  the  sanction  and  approval 
of  this  State  before  the  title  of  the  State,  under  any  rule  of  con- 
struction, absolutely  attached  to  any  specific  tract  of  land.  If 
it  be  conceded  that  the  State  had  a  vested  title  to  the  mineral 
lands  contained  in  the  sixteenth  and  thirty-sixth  sections,  prior 
to  the  Act  of  February  13th,  1867,  it  is  certain  that  by  said  act 
it  relinquished  its  rights  thereto,  and  thereby  agreed  to  accept 
other  lands  in  lieu  thereof. 

"  The  passage  of  said  act  was  a  recognition  by  the  legislature 
of  this  State  of  the  validity  of  the  claim  made  by  the  Govern- 
ment of  the  United  States  to  the  mineral  lands. 

"  Whatever  might,  therefore,  be  the  construction  of  the  Ian- 


72  RESERVATIONS    AND    EXCEPTIONS.  §  35 

guage  of  the  Enabling  Act,  as  interpreted  from  the  act  itself, 
we  think  it  is  controlled  by  the  subsequent  legislation  we  have 
referred  to,  and  that  the  title  of  the  State  to  the  land  conveyed 
to  appellant's  grantors  was,  at  the  time  of  the  survey  thereof, 
subject  to  the  terms  and  conditions  imposed  by  the  Act  of  Con- 
gress of  July  4th,  1866  ;  and  as  the  portion  of  said  land  in  con- 
troversy in  this  action  was  then  '  rich  in  minerals,'  and  occupied 
and  claimed  by  respondent's  grantors  for  mining  purposes,  the 
grantors  of  appellant  acquired  no  title  thereto  by  virtue  of  the 
patent  issued  by  this  State. 

"  Against  the  views  we  have  above  expressed,  counsel  for  ap- 
pellant make  three  objections  :  1st.  It  is  first  argued  that  the  Act 
of  July  4th,  1866,  is  prospective  in  its  terms,  and  that  it  only 
applies  to  future  acts  or  grants.  We  think  that  the  act,  when 
read  entire,  is  susceptible  of  but  one  construction.  It  refers  to 
lands  granted  prior  to,  and  at  the  time  of,  the  passage  of  the 
act.  The  title  of  the  act  clearly  indicates  that  it  was  the  inten- 
tion of  Congress  to  make  the  act  apply  to  lands  already  granted 
— '  An  Act  concerning  lands  granted  to  the  State  of  Nevada  ' — 
not  lands  to  be  thereafter  granted,  but  lands  granted  by  that 
and  other  prior  acts  of  Congress.  The  construction  we  have 
placed  upon  this  act  must  certainly  be  correct,  if  it  be  true,  as 
was  argued  by  appellant's  counsel  upon  another  branch  of  this 
case,  and  held  to  be  the  law  in  Whitney  v.  Whitney,  14  Mass. 
92,  that  we  should  not  be  encouraged  to  direct  our  conduct,  in 
arriving  at  the  intentions  of  the  legislature,  '  by  the  crooked 
cord  of  discretion,  but  by  the  golden  metcv^and  of  the  law '  ; 
that  we  are  not  to  construe  statutes  by  equity,  but  to  collect  the 
sense  of  the  legislature  by  a  sound  interpretation  of  its  language, 
according  to  reason  and  grammatical  correctness.  But  we  do 
not  think  there  is  any  room  for  argument  as  to  its  meaning.  It 
applies  to  all  grants  made  by  Congress  to  the  State  of  Nevada, 
where  the  lands  granted  had  not  been  surveyed  by  the  Govern- 
ment of  the  United  States,  and  included  the  grant  mentioned  in 
the  Enabling  Ait,  and  such  was  the  evident  understanding  of 
the  legislature  of  this  State  when  it  passed  the  act  of  acceptance, 
approved   February  13th,'1867. 

■•  2d.  It  is  argued  that  the  Act  of  Congress  applies  only  to  the 
public   lands   then   belonging   to  the  United    States,  and  it  is 


§  35  RESERVATIONS    AND    EXCEPTIONS.  73 

claimed  that,  inasmuch  as  the  sixteenth  and  thirty-sixth  sections 
had  already  been  granted,  the  act  did  not  affect  the  title  to  them, 
as  they  were  no  longer  public  lands.  An  examination  of  the 
various  acts  of  Congress  relative  to  the  surveying  of  the  public 
lands,  has  convinced  us  that  the  word  '  public '  is  aj)plied  by 
Congress  to  all  the  unsurveyed  lands,  whether  the  same  or  any 
portion  thereof  had  been  previously  granted  or  not. 

"  All  lands  are  public  within  the  meaning  of  that  word,  as 
used  in  the  act  referred  to,  until  the  survey  is  made.  This  is 
necessarily  so,  because,  until  the  surveys  are  made,  the  rights  of 
the  grantee  to  any  specific  tract  of  land  could  not  be  ascer- 
tained ;  hence,  it  is  that  the  word  '  public  '  is  used  to  distinguish 
the  unsurveyed  from  the  surveyed  and  segregated  lands  where 
the  rights  of  private  proprietorship  had  attached. 

"  3d.  The  last  objection  argued  by  appellant's  counsel  is,  that 
the  Act  of  February  13th,  1867,  is  in  violation  of  the  third  sec-' 
tion  of  Article  11  of  the  constitution  of  this  State.  It  is 
claimed  that,  by  the  provisions  of  said  section,  the  sixteenth  and 
thirty-sixth  sections  are  set  apart  and  dedicated  to  the  public 
schools,  and  that  it  was  not,  therefore,  within  the  power  of  the 
legislature  to  relinquish  the  title  of  the  State  to  these  sections. 
Section  3  provides  that  '  all  lands,  including  the  sixteenth  and 
thirty-sixth  sections  in  every  township,  donated  for  the  benefit  of 
public  schools,  in  the  Act  of  the  Thirty-eighth  Congress,  to  ena- 
ble the  people  of  Nevada  Territory  to  form  a  State  government, 
*  *  *  shall  be  and  the  same  are  hereby  solemnly  pledged 
for  educational  purposes,  and  shall  not  be  transferred  to  any 
other  fund  for  any  other  uses,'  etc, 

"  The  plain  object  of  this  provision  of  the  constitution  was  to 
prevent  the  legislature  from  passing  any  law  that  would  appro- 
priate the  proceeds  received  by  the  State  from  the  sale  of  such 
lands  to  any  other  than  educational  purposes.  The  title  to  said 
sections  is  vested  in  the  State,  not  in  the  schools.  The  lands 
are  solemnly  pledged  to  educational  purposes,  and  when  sold  by 
the  State  the  proceeds  arising  therefrom  must,  under  the  provis- 
ions of  the  constitution,  be  paid  into  the  school  fund,  and  only 
be  used  for  educational  purposes,  '  and  shall  not  be  transferred 
to  any  other  fund  for  any  other  uses.'  The  same  disposition 
must  also  be  made  of  the  proceeds  derived  by  the   State  from 


74  RESERVATIONS    AND    EXCEPTIONS.  §  35 

the  sale  of  lands  selected  in  lieu  of  the  sixteenth  and  thirty-sixth 
sections.  There  is  nothing  in  the  act  which  attempts  to  make 
any  disposition  of  said  lands  for  any  other  than  educational  pur- 
poses. The  school  fund  is  fully  protected,  and,  in  our  opinion, 
this  provision  of  the  constitution  has  not  been  violated. 

"  We  have  not,  in  this  opinion,  considered  the  legal  effect  of  the 
joint  resolution  of  Congress,  approved  January  30th,  1865,  which 
provides  that  no  act  passed  at  the  same  session  of  Congress  as 
the  Enabling  Act,  '  shall  be  so  construed  as  to  embrace  mineral 
lands,  which  in  all  cases  shall  be  and  are  reserved  exclusively 
to  the  United  States,  unless  otherwise  specially  provided  in  the 
act  or  acts  making  the  grant,'  and  which  was  construed  by  the 
Secretary  of  the  Interior  to  exclude  from  the  operation  of  the 
Enabling  Act  all  mineral  lands  (Copp's  U.  S.  Mining  Decisions, 
31)  ;  nor  have  we  deemed  it  necessary  to  discuss  many  other 
points  that  were  urgently  pressed  by  counsel,  as  the  results  we 
have  reached,  upon  the  points  decided,  are  in  our  judgment 
conclusive  of  this  case."  * 

In  the  Land  Office  it  has  been  held  that  Sections  16  and  36, 
when  mineral,  did  not  pass  to  the  State  of  Nevada,  under  the 
Act  of  Congress  of  March  24th,  1864,  in  view  of  Joint  Resolu- 
tion of  January  30th,  1865,  but  remained  the  property  of  the 
United  States.  2 

i  Heydenfelt  v.  Daney  G.  &  S.  M.  Co.  10  Nevada,  290. 

The  author  is  informed  that  this  case  has  been  recently  affirmed  (March, 
1877)  by  the  Supreme  Court  of  the  United  States.  The  opinion  of  the  Court,  de- 
livered by  Davis,  J.,  is  said  to  hold:  First — That  the  Act  of  Congress  of  March 
21st,  18G4,  authorizing  the  people  of  Nevada  to  frame  a  constitution,  under  which 
act  Nevada  selected  and  conveyed  the  land  in  controversy  to  the  grantees  of 
Heydenfelt,  'lid  not  constitute  a  grant  in  prcscnti  of  the  premises,  but  the  grant  re- 
mained inchoate  and  incomplete  until  the  land  was  surveyed  by  the  United  States 
authorities,  ami  the  survey  properly  approved.  Second— That  the  surveyandap- 
proval  not  having  been  made  prior  to  the  entry  by  the  company's  predecessors 
in  interest  for  mining  purposes,  the  land  was  not,  by  act  of  Congress,  or  in 
any  other  manner,  ever  granted  by  the  United  States  to  Nevada.  Third— That, 
under  t  be  entry,  the  company's  grantors,  and  their  right  thereto,  having  become 
,  stablished  prior  tot  ue  survey  of  Section  1G  by  the  United  States,  the  land  was 
o'oi  included  in,  nor  did  it  pass  to  Nevada  by,  the  granting  clause  of  1864,  but, 
mi  the  contrary,  was  excluded  therefrom  because  previously  possessed  and  oc- 
cupied h.'.  ■  grantors  for  mining  purposes  in  conformity  with  the  min- 
ing laws,  rules,  and  customs  of  the  miner;  in  the  locality  where  it  is  situated, 
and  in  conformity  With  the  Mining  Act  of  Congress,  approved  July  26th,  1866. 

The  opinion  la  not,  at  the  date  <>f  writing,  accessible  to  the  author.  See  Ap- 
ia MilX. 

s  Decision  of  Secretary,  May  20th,  1870,  Copp's  Mining  Decisions,  31. 


§  36  RESERVATIONS    AND    EXCEPTIONS.  75 

§  36.  Mineral  lands  in  railroad  grants. — Two  cases  in 
California  have  been  decided,  wherein  the  ownership  by- 
railroads  of  mineral  lands  within  the  boundaries  of  their 
grants,  has  been  considered.  In  McLaughlin  v.  Powell,  50 
Cal.  64,  the  action  was  ejectment.  The  defendant,  in  his 
answer,  set  up  that  the  plaintiff  claimed  the  land  under  a 
grant  made  to  the  Central  Pacific  Railroad  Company  of  Cali- 
fornia, and  that  the  land  was  mineral  land,  and  was  by  the  ex- 
press terms  of  the  grant  excepted  from  the  operation  of  the 
same.  On  the  trial,  the  plaintiff  offered  in  evidence  a  patent 
from  the  United  States  to  the  Western  Pacific  Railroad  Com- 
pany of  California,  dated  May  31st,  1870,  conveying  the 
demanded  premises  as  a  portion  of  the  land  granted  by  Con- 
gress, to  aid  in  the  construction  of  a  railroad,  by  the  Act  of 
July  1st,  1862,  and  the  act  amendatory  thereof,  passed  July  2d, 
1864.  By  the  terms  of  said  acts,  the  grant  was  limited  to  pub- 
lic land  which  was  not  mineral  land,  and  which  was  not  sold, 
reserved,  or  otherwise  disposed  of  by  the  United  States,  and  to 
which  a  pre-emption  or  homestead  claim  should  not  have  attached 
at  the  time  the  line  of  the  road  should  be  definitely  fixed. 

The  objections  to  the  admission  of  the  patent  being  overruled, 
the  plaintiff  then  deraigned  title  by  mesne  conveyances  from 
the  company,  and  rested,  and  the  defendant  then  offered  to  prove 
that  the  land  was  mineral  land,  containing  large  quantities  of 
cinnabar  and  quicksilver,  and  that  he  had  held  the  land  as  a 
mining  claim  since  October,  1866,  under  the  rules  and  regula- 
tions and  customs  of  miners  in  the  district  where  the  land  was 
situated.     The  objections  to  this  testimony  were  sustained. 

It  was  assumed  in  the  decision  that  lands  valuable  because  of 
cinnabar  or  quicksilver  ores  are  "  mineral  lands  "  within  the 
meaning  of  the  act  of  Congress. 

The  defendants'  objection  to  the  patent,  that  it  was  "  irrele- 
vant," was  held  properly  overruled.  It  was  held  not  necessary  to 
decide  whether  it  was  for  the  plaintiff,  who  relied  on  the  patent, 
to  prove  that  the  land  in  controversy  was  not  one  of  the  ex- 
cepted tracts,  because  no  motion  for  nonsuit  was  made,  and  it 
was  held  that  if  the  plaintiff  was  not  required  to  prove  that  the 
land  was  not  within  the  exception,  the  defendant  was  entitled 
affirmatively  to  establish  that  it  was  within  it. 


76  KESERVATIONS    AND    EXCEPTIONS.  §  36 

The  exception  contained  in  the  patent  was  part  of  the  de- 
scription, and  was  equivalent  to  an  exception  of  all  the  subdivi- 
sions of  land  mentioned,  which  were  "  mineral "  lands. 

The  patent  granted  all  of  the  tracts  named  in  it  which  were 
not  mineral  lands.  If  all  were  mineral  lands,  it  was  suggested 
that  the  exception  might  be  void ;  but  as  the  fact  could  not  be 
assumed,  it  was  held  that  the  defendant  should  have  been 
allowed  to  prove  that  the  demanded  premises  were  mineral 
lands.1 

In  Alford  v.  Barnum,  45  Cal.  482,  an  action  to  abate  a  ditch 
as  a  nuisance,  the  defense  was  that  the  land  upon  which  the 
ditch  was  dug  was  the  public  mineral  land  of  the  United  States, 
and  that  the  defendants  were  mining  thereon  for  gold. 

The  land  was  within  the  grant  to  the  Central  Pacific  Railroad 
Company,  and  the  company,  prior  to  the  excavation  of  the 
ditch,  had  received  a  patent  for  it,  which  patent  excepted  from 
its  operation  all  "mineral  lands."  The  plaintiff,  at  the  time  the 
ditch  was  dug,  was  in  possession  of  the  land  under  a  contract 
of  purchase  from  the  railroad  company,  who  claimed  under 
grant  and  patent  from  the  United  States. 

No  license  from  plaintiff  was  pleaded,  nor  attempted  to  be 
pleaded  in  time.  It  was  found  that  the  ditch  was  injurious  to 
the  premises,  and  interfered  with  the  plaintiff's  full  and  free 
enjoyment  of  the  land. 

It  was  virtually  found  below  that  the  character  of  the  land 
was  not  mineral,  but  the  appellate  Court  further  remarked  that 
the  mere  fact  that  portions  of  the  land  contained  particles  of 
gold,  or  veins  of  gold-bearing  quartz  rock,  would  not  neces- 
sarily impress  it  with  the  character  of  mineral  land  within  the 
meaning  of  the  acts  of  Congress  reserving  mineral  lands  from 
the  grant,  nor  within  the  reservations  of  the  patent  which  fol- 
lowed the  terms  of  the  granting  acts. 

It  should  be  shown  that  the  land  contains  metals  in  quanti- 
ties sufficient  to  render  it  available  and  valuable  for  mining 
purposes.     Any  narrower  construction,  it  was  thought,  would 

i  McLaughlin   V.  Powell,  50  Cal.  64.     Sec,  also,  Railroad  v.  Smith,  9  Wallace, 
People  v.  si  ratio,,,  25  Cal.  242;  Kernan  v.  Griffith,27  Cal.  87;  Robinson  v. For- 
rest, 29  Cal.  -17,  Bead  v.  Caruthers,  47  Cal,  181;  Patterson  v.  Lynch,  Circuit 
(Hurt  of  California.  Decision  of  Mr.  Justice  Sawyer. 


§  36  RESERVATIONS    AND    EXCEPTIONS.  77 

operate  to  reserve  from  the  uses  of  agriculture  large  tracts  of 
land  which  are  practically  useless  for  any  other  purpose. 

The  land,  therefore,  was  held  not  within  the   exception,  and 
the  plaintiff  had  judgment.1 

i  Alforcl  v.  Barnum,  45  Cal.  482;  12  TJ.  S.  Stat,  at  L.  4S9;  13  Tbid.  356.  See 
Decision  of  Commissioner,  March  14th,  1S71,  Copp's  U.  S.  Mining  Decisions,  40. 

Upon  the  general  subject  of  reservations  in  grants  of  mines,  see  Blancbard 
&  Weeks'  Leading  Cases  on  Mines  and  Mining  Water  Rights,  Chap.  X. 


78  RIGHT   TO    MINERAL    DEPOSITS.  §  37 


CHAPTER  HI. 

EIGHT  OF  EXPLORATION  AND  PURCHASE  OF  VALUABLE  MIN- 
ERAL DEPOSITS,  AND  THE  OCCUPATION  AND  PURCHASE  OF 
MINERAL  LANDS— CITIZENSHIP  AND  PROOF  THEREOF. 

§  37.  Right,  to  purchase. 

§  38.  Valuable  deposits. 

§  39.  The  general  rule  stated. 

§  40.  Borax  deposits. 

§  41.  Mineral  deposits. 

§  42.  What  is  a  mineral  vein  ? 

§  43.  Mineral  veins,  classifications. 

§  44.  Definitions  of  terms  in  common  use. 

§  45.  Who  may  acquire  patents. 

§  46.  Application  by  aliens. 

§  47.  Citizenship. 

§  48.  Proof  of  citizenship. 

§  49.  Affidavit  of  citizenship. 

§  50.  Foreign  corporation. 

§  51.  Restriction  as  to  proof. 

§  37.  Right  to  purchase. — Sec.  2319  of  the  Revised  Stat- 
utes is  as  follows :  "  All  valuable  mineral  deposits  in  lands  be- 
longing to  the  United  States,  both  surveyed  and  unsurveyed, 
are  hereby  declared  to  be  free  and  open  to  exploration  and  pur- 
chase, and  the  lands  in  which  they  are  found,  to  occupation  and 
purchase  by  citizens  of  the  United  States,  and  those  who  have 
declared  their  intention  to  become  such,  under  regulations  pre- 
scribed by  law,  and  according  to  the  local  customs  or  rules  of 
miners  in  the  several  mining  districts,  so  far  as  the  same  are 
applicable  and  not  inconsistent  with  the  laws  of  the  United 
States."  J 

i  Rev.  Stats.  Sec.  2.ril9,  same  as  Sec.  1,  Act  1872,  17  U.  S.  Stats.  91. 

Bee.  1,  Act  of  1866,  14  U.  S.  Stats.  251,  read  :  "That  the  mineral  lands  of  the 

public  domain,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be  free 

and  open  to  exploration  and  occupation  by  all  citizens  of  the  United  States, 

and  those  who  Uave  declared  their  intention  to  become  citizens,  subject  to  such 

ations  as  may  be  prescribed  by  law,  and  subject  also  to  tho  local  customs 

lea  of  miners  in  the  several  mining  districts,  so  far  as  the  same  may  not  bo 

in  conflict  With  the  laws  of  the  United  States."     (See  Sec.  2329  Rev.  Stat.)    See 

Ante,  §2. 


§  38  RIGHT   TO    MINERAL    DEPOSITS.  79 

§  38.  Valuable  deposits. — The  word  "  deposit  "  has  always 
been  construed  by  the  Land  Office  to  be  a  general  term,  embrac- 
ing veins,  lodes,  ledges,  placers,  and  all  other  forms  in  which 
valuable  metals  have  ever  been  discovered.  In  the  sense  in  which 
the  term  "  mineral  "  was  used  by  Congress,  it  seems  difficult 
to  find  a  definition  that  will  embrace  what  mineralogists  anree 
should  be  included.  Borax,  nitrate  and  carbonate  of  soda,  sul- 
phur, alum,  and  asphalt,  arc  generally  classified  and  discussed 
as  minerals.1  Whatever  is  recognized  as  a  mineral  by  standard 
authorities,  where  the  same  is  found  in  quality  and  quantity 
sufficient  to  render  the  land  sought  to  to  be  patented  more  valu- 
able on  this  account  than  for  purposes  of  agriculture,  is  treated 
by  the  land  office  as  coming  within  the  act.  Lands,  therefore, 
valuable  on  account  of  borax,  carbonate  of  soda,  nitrate  of 
soda,  sulphur,  alum,  and  asphalt,  it  is  held,  may  be  applied  for 
and  patented.2 

The  first  section  of  the  Act  of  1872  says:  "  All  valuable 
mineral  deposits."3  The  sixth  section  uses  the  term  "valuable 
deposits."  4 

Diamond-producing  lands  are  "  valuable  mineral  deposits  " 
under  the  act,  and  the  provisions  are  as  applicable  as  to  lands  con- 
taining gold  or  silver.5  Deposits  of  fire-clay  may  be  patented 
under  the  act,  and  so  may  iron  deposits,  which  may  be  patented 
as  vein  or  placer  claims.6 

Lands,  more  valuable  on  account  of  deposits  of  limestone, 
marble,  kaolin e,  and  mica,  than  for  purposes  of  agriculture,  may 
be  patented  as  mineral  land.7 

Where  valuable  deposits  of  roofing  slate  had  been  discovered, 

1  Phillips'  Mineralogy  ;  "Webster  s  Dictionary. 

2  Decision  of  Commissioner,  July  15th,  1S73,  CoppsTJ.  S.  Mining  Decisions, 
olG  ;  Decision  of  Acting  Comr.  Oct.  23d,  1874,  1  Copp's  Land-owner,  132;  Report 
Comr.  Genl.  Land  Office,  1873,  p.  17. 

s  Rev.  Stats.  Sec.  2319;  17  U.  S.  Stats.  91. 

4  Rev.  Stats.  Sec.  2325;  17  U.  S.  Stats.  92. 

5  Decision  of  Acting  Secretary,  Aug.  31st,  1Q72,  Sept.  3d,  1872,  Copp's  U.  S. 
Mining  Decisions,  149;  Report  Comr.  Genl.  Land  Office,  1S73,  p.  16. 

0  Decision  of  Comr.  July  10th,  1873  and  July  2Gth,  1873,  Copp's  TJ.  S.  Mining 
Decisions,  209-214;  1  Copp's  Land-owner  34;  Decision  of  Comr.  Jan.  30th,  1875, 
1  Copp's  Land-owner,  179. 

7  Decision  of  Comr.  June  2Sth,  1875,  2  Copp's  Land-owner,  6G;  Decision  of 
Comr.  Dec.  3d,  1S75,  2  Copp's  Land-owner,  131. 


80  EIGHT    TO    MINERAL    DErOSITS.  §§  39-40 

and  large  amounts  spent  in  their  development,  the  applicants 
were  allowed  to  proceed  to  obtain  patent.3 

But  under  the  Act  of  1866,  the  office  did  not  regard  sulphur- 
springs  as  mineral  so  as  to  come  within  the  inhibition  of  the 
statutes  excluding  mineral  and  saline  lands  from  pre-emption 
entry  or  scrip  location.2 

Auriferous  cement  claims  found  in  ancient  river-beds,  and 
usually  worked  by  hydraulic  process,  do  not  come  within  the 
definition  of  "rock  in  place,"  but  are  patented  as  placers.3 
Petroleum  claims  may  be  patented  under  the  Act  of  1872.4 
Lands  containing  valuable  deposits  of  umber  may  be  patented 
as  placer  claims  at  $2.50  per  acre,  if  not  found  in  veins  or  "  rock 
in  place."  If  they  are  so  found,  then  they  may  be  patented  at 
the  rate  of  $5  per  acre,  like  other  lode-claims.5 

§  39.  The  general  rule  stated. — The  rule  may  be  stated 
in  general  terms,  that  where  valuable  mineral  deposits  are  found 
in  such  quantity  and  quality  as  to  render  the  land  sought  to 
be  patented  more  valuable  on  this  account  than  for  purposes  of 
agriculture,  the  tracts  containing  such  valuable  mineral  deposits 
may  be  patented  under  the  mining  acts.  But  if  this  is  not  the  case, 
they  cannot  be  patented  under  the  act  except  in  the  case  of  mill 
sites,  which  must  be  non-mineral  in  character.  If  parties  have 
the  possession  and  right  of  possession  to  salt-springs,  and  the 
deposit  of  salt  renders  the  land  more  valuable  on  this  account 
than  for  agricultural  purposes,  a  patent  may  be  secured  upon 
full  compliance  with  the  laws  and  instructions.6 

§  40.  Borax  deposits  cannot  be  entered  under  the  Agricul- 
tural Laws  of  Congress,  but  may  be  under  the  Mining  Acts, 
upon  full  compliance  with  the  laws,  as  they  provide  for  the  patent- 

1  Decision  of  Acting  Commissioner,  Oct.  23d,  1874;  1  Copp's  Land-owner,  132. 

2  Decision  of  Commissioner,  Aug.  25th,  18G9,  Copp's  U.  S.  Mining  Decisions, 
22. 

8 Decision  of  Commissioner,  Feb.  12th,  1872,  Copp's  U.S.  Mining  Decisions,  78 

*  Decision  <>f  Commissioner.  Jan.  30th.  1875,  1  Copp's  Land-owner,  179. 

■'•  ll.i.l. 

«  Derision  of  Afiing  Commissioner,  April  27th,  1874;  1  Copp's  Land-owner,  10, 
revei  Ing  D&  Ion  Commissioner,  July  28th,  1873;  Copp's  U.  S.  Mining  Decis- 
lons,  214,  which  was  to  the  effect  that  there  was  no  general  law  under  which 
Brings  could  be  patented,  and  that  they  could  only  be  disposed  Of  by  spec- 
ial ad  of  <  longress 


§  41  RIGHT   TO   MINERAL    DEPOSITS.  HI 

ing  of  lands  claimed  and  located  for  valuable  deposits.  The 
proceedings  required  are  the  same  as  in  applications  for  placer 
mines.1 

§  41.  Mineral  deposits. — The  useful  minerals  are  found  in 
deposits,  which  are  classified  into  superficial,  stratified,  and  un- 
stratified  deposits.  Superficial  deposits  are  those  in  which  the 
materials  are  yet  unconsolidated,  and  have  been  washed  down 
from  cliffs  and  mountain  slopes,  composed  of  rocks  that  contain 
metals,  ores,  and  gems,  either  in  veins  or  irregularly  disseminated. 
The  "  placers  "  of  California  are  familiar  instances  of  this  kind 
of  deposit. 

2d.  Stratified  deposits — where  the  minerals  form  entire  strata, 
such  as  beds  of  coal  and  iron  ore. 

3d.  Unstratified  deposits,  which  are  subdivided  into  : 

Eruptive  masses — Composed  of  the  ingredients  of  volcanic 
rocks. 

Minerals  disseminated  through  eruptive  rocks. — These,  as  a 
rule,  are  neither  numerous  nor  valuable. 

Contact  deposits. — Metals  or  ores  accumulated  in  the  plane 
of  junction  between  two  rocks  of  different  kinds,  such  as  igne- 
ous and  sedimentary  rocks. 

Impregnations — Which  are  accumulations  of  metalliferous 
minerals  found  diffused  irregularly  through  rocky  masses,  the 
deposits  of  ore  having  no  definite  boundaries,  or  any  regularity 
of  structure,  and  appearing  as  though  the  rock  had  soaked  up 
or  absorbed  the  minerals  as  water  saturates  a  sponge.  Deposits 
of  mercury  exhibit  this  characteristic. 

Fahlbands — A  name  given  to  a  peculiar  kind  of  deposit,  where 
the  ore  is  sparingly  diffused  through  certain  layers  which  are 
apt  to  disintegrate,  and  are  more  fahl  (i.  e.,  foul  or  rotten)  than 
the  associated  strata. 

Stock  work — Where  the  masses  of  metalliferous  rocks  are 
penetrated  in  every  direction  by  threads  or  strings  of  ore,  so 
that  the  whole  must  be  taken  out  together.2 

And  mineral  veins. 

1  Decision  of  Commissioner,  April  18th,  1873,  Copp's  U.  S.  Mining  Decisions, 
194. 

2  Am.  Cyclop.  Art.  Mineral  Deposits,  by  Prof.  Newberry . 

W.  C— 6. 


82  RIGHT    TO    MINERAL    DEPOSITS.  §§  42-3 

§  42.  What  is  a  mineral  vein  ? — A  mineral  vein,  as  com- 
monly understood,  is  a  collection  of  mineral  matters  which  have 
been  slowly  brought  together  and  consolidated  in  elongated 
cracks  or  fissures  in  the  rocks.  Dikes  arc  collections  formed  of 
molten  rock,  as  lava,  which  has  suddenly  flowed  into  fissures 
and  cooled.  Among  the  earthy  minerals  which  form  the 
gangue  or  vein-stones  arc  often  found  metallic  ores,  and  it  is 
from  this  source  that  the  chief  supplies  of  the  useful  metals  are 
obtained.  Veins  worked  for  these  are  called  by  the  miners 
"  lodes." 

Veins  arc  met  with  in  almost  all  rocks,  are  traced  for  miles  in 
length,  and  penetrate  the  crust  of  the  earth  deeper  than  man 
has  ever  been  able  to  follow  them. 

§  43.  Mineral  veins — Classifications. — Mineral  veins  are 
usually  sheets  of  mineral  matter,  of  greater  or  less  lateral  and 
vertical  extent.  They  have  been  divided  into  three  principal 
varieties,  which  arc  generally  well  marked,  but  which  some- 
times blend  in  such  a  way  as  not  to  be  easily  separated.  These 
varieties  of  mineral  veins  are  known  as  gash  veins,  segregated 
veins,  and  fissure  veins. 

Gash  veins — Arc  such  as  are  confined  to  a  single  stratum  or 
formation,  and  hence  arc  of  limited  extent,  both  laterally  and 
vertically.  They  may  be  vertical  at  right  angles  with  the 
stratum,  or  horizontal  and  parallel  with  it. 

Segregated  veins — Are  usually  lenticular  sheets  of  ore-bearing 
mineral,  which  arc  conformable  to  the  bedding  of  the  associated 
rocks,  i.  c,  arc  interposed  between  the  layers  of  such  rocks. 
They  always  occur  in  mctamorphic  rocks,  and  arc  usually  in- 
clined at  a  high  angle  with  the  horizon.  They  are  called  seg- 
regated veins  because  they  arc  supposed  to  have  been  formed  in 
the  process  of  metamorphism,  by  the  separation  or  withdrawal 
of  the  materials  which  compose  them  from  the  adjacent  strata, 
and  their  concentration  along  certain  lines.  Segregated  veins 
are  limited,  both  laterally  and  vertically.  They  rarely  exhibit 
anything  of  the  banded  structure  which  characterizes  fissure 
veins,  are  cliicfly  composed  of  quartz,  and  form  the  great  repos- 
itories! of  gold.  Though  segregated  veins  have  usually  no  great 
lateral  or  vertical  extent,  they  sometimes   attain    a   thickness  of 


§  43  EIGHT   TO   MINERAL    DEPOSITS.  83 

twenty  and  thirty  feet,  and  have  a  length  on  the  surface  of  a 
mile  or  more. 

Fissure  veins. — These  are  of  indefinite  extent,  laterally  and 
vertically.  They  have  been  formed  by  volcanic  or  earthquake 
action,  by  which  the  rocks  have  been  fractured  and  displaced. 
In  all  cases  where  an  important  crack  or  fissure  is  made  by 
subterranean  upheaval,  cither  by  the  slipping  in  of  wedges  of 
rock  or  by  the  shifting  of  the  sides  of  the  fissure,  so  that  their 
irregularities  fail  to  match,  the  walls  are  prevented  from  re- 
turning to  their  original  positions,  and  an  irregular,  open  crevice 
is  produced'.  When  subsequently  filled  by  foreign  matter  con- 
taining metals  or  ores,  such  a  fissure  becomes  a  fissure  vein. 
In  some  instances  the  fracture  of  the  rocks  has  considerable 
regularity,  and  the  fissure  may  be  of  uniform  width  for  several 
hundred  feet  in  either  direction.  More  generally,  and  especially 
where  a  fracture  is  attended  with  displacement,  the  fissure  is 
of  very  unequal  width,  the  vein-matter  has  in  places  a  thickness 
of  many  feet,  while  at  other  points  where  the  projecting  walls 
approach  or  come  in  contact,  the  vein  becomes  very  thin,  and 
may  be  quite  "  pinched  out."  From  their  mode  of  formation, 
fissure  veins  are  without  definite  limits,  horizontally  or  vertically, 
They  may  frequently  be  traced  for  miles  upon  the  surface,  and 
their  limits  in  depth  are  rarely  reached.  They  therefore  hold 
more  extensive  and  continuous  deposits  of  ore  than  any  other 
kind  of  mineral  veins,  and  constitute  the  most  trustworthy 
bases  for  mining  operations.  Fissure  veins  frequently  present 
a  banded  structure  in  the  materials  which  compose  them,  and 
this  forms  one  of  their  most  striking  characteristics.  This 
feature  is  produced  by  the  deposition  on  their  walls  of  success- 
ive layers  of  different  minerals.  These  layers  often  corres- 
pond on  cither  side  of  the  central  line,  showing  that  the  depo- 
sition of  the  different  sheets  took  place  simultaneously  on  both 
walls.  Sometimes  a  fissure  vein  exhibits  a  double  or  triple  se- 
ries of  bands,  showing  that  after  being  filled  with  ores  it  was 
again  opened  and  a  new  fissure  formed,  and  then  this  was  filled 
in  the  same  way  as  the  first.  The  quartz,  which  constitutes  a 
large  part  of  the  material  composing  fissure  veins,  frequently 
shows  a  "  comby  "  structure,  due  to  the  formation  of  crystals, 
which  shoot  out  from  the  walls,  and  interlock  where  they  meet. 


84  EIGHT   TO   MINERAL    DEPOSITS.  §  43 

Another  common  feature  in  fissure  veins  is  the  "  fluccan  "  or  "  sel- 
vege,"  a  sheet  of  clay  which  lines  either  wall,  and  causes  the 
vein-matter  to  cleave  off  readily.  This  fluccan  seems  to  be  due 
partly  to  the  attrition  of  the  sides  when  moved  with  immense 
force  upon  each  other,  and  partly  to  the  action  on  the  walls  of 
chemical  solutions  filling  the  fissure.  The  sides — and  some- 
times the  interior — of  fissure  veins  generally  show  polished  and 
vertically  striated  surfaces  ("  slickensides ").  These  are  pro- 
duced by  the  friction  of  the  walls  on  each  other,  or  on  the  ma- 
terial composing  the  vein.  Fissure  veins  cut  indiscriminately 
through  all  kinds  of  rock.  They  frequently  traverse  stratified 
rocks  across  their  lines  of  deposition  and  outcrop,  and  are  then 
called  cross-cut  veins,  to  distinguish  them  from  those  that  are 
more  or  less  accordant  with  the  stratification.1 

The  origin  of  fissures  is  more  readily  understood  than  the 
source  of  the  materials  that  fill  them.  The  forces  which  pro- 
duce cracks  in  clays  by  their  shrinkage,  and  in  other  substances 
by  change  of  temperature,  also  operate  to  rend  apart  the  solid 
strata,  and  fissures  in  these  are  also  produced  by  earthquakes 
and  volcanic  action.  Such  openings  are  naturally  found  very 
irregular  in  their  dimensions,  and  in  districts  where  earthquake 
movements  have  been  frequent,  interrupted  in  their  continuity, 
crossed  by  other  fissures  of  later  formation,  and  ramifying  into 
side  openings,  some  of  which  may  prove  as  extensive  as  the 
main  fissure.2  The  fissure  is  sometimes  seen  still  open,  contain- 
ing only  loose  earth  and  stones  that  have  fallen  in  from  above, 
and  sometimes  it  is  partially  filled  with  vein-stones,  or  ores, 
open  spaces  still  remaining  unfilled,  and  forming  caverns  on  the 
line  of  the  vein.  The  fissure  again  may  be  quite  filled  with 
mineral  substances,  which  may  be  closely  attached  to  the  walls, 
as  if  all  were  originally  formed  at  the  same  time,  or,  as  is  more 
commonly  the  case,  a  parting  seam  maybe  found  on  one  or  both 
sides,  separating  the  vein-stone  from  the  wall  rock,  and  the  faces 
of  each  are  then  often  seen  presenting  a  smooth  surface,  as  if  they 

1  In  iliis  description  of  mineral  deposits  and  mineral  veins,  the  author  has 
given  a  Bynopsis  of  an  article  in  the  American  Cyclopaedia,  Edition  of  1875, 
contributed  by  Prof .  J.  8.  Newberry,  LL.  D.,  Columbia  College,  New  York.  Se« 
further,  as  to  contents  of  veins,  "  Filling  of  Veins,"  Theory  of  Injection,  of  Aque- 
ous Deposition,  of  Lateral  Secretion,  Sublimation.  Chemical  Precipitation,  etc 

-New  Am.  Cyclop.  "  Mineral  Vein." 


§  43  RIGHT    TO    MINERAL    DEPOSITS.  85 

had  been  rubbed  together.  A  thin  layer  of  tough  clay,  called 
by  the  miners  "  fluccan,"  is  commonly  interposed  in  the  seam 
between  the  veins  and  its  walls.  Veins  usually  occur  in  groups 
of  several  together,  lying  nearly  parallel  to  each  other,  both  in 
direction  and  inclination  downward ;  but  as  they  arc  followed 
in  one  or  the  other  direction,  along  the  surface,  or  on  their  slope 
down,  which  is  called  their  "  dip  "  or  "  under-lay,"  they  are 
often  found  to  run  into  each  other.  While  their  general  line  is 
straight,  it  is  more  or  less  waving  in  places,  and  their  dip  is  more 
variable,  often  becoming  steeper  at  great  depths,  and  changing 
to  greater  or  less  steepness  along  their  course.  The  position  of 
veins  in  regard  to  the  rocks  which  contain  them  is  sometimes 
across  their  strata,  and  sometimes  with  them,  and  in  the  latter 
case  the  veins  are  often  found  both  in  dip  and  direction  to  pass 
across  one  stratum,  and  continue  between  different  layers  from 
those  in  which  they  were  first  seen,  thus  establishing  their 
character  as  veins  formed  in  fissures  in  contradistinction  to  beds. 
Along  the  line  of  contact  of  two  rocks  of  different  character, 
as  granite,  gneiss,  or  trap  with  sandstone  or  limestone,  veins 
frequently  occur,  and  branches  lead  off  into  the  rock  on  one 
side  or  the  other. 

It  appears  as  if  fissures  may  have  opened  originally  in  such 
positions,  and  also  between  adjoining  strata  of  the  same  rock, 
for  the  reason  that  the  disrupting  force,  Avhen  not  directed  at 
right  angles  across  the  strata,  found  along  these  lines  the  least 
resistance.  A  vein  which  cuts  through  rocks  of  different  kinds 
changes  not  merely  as  regards  its  contents,  but  also  in  respect  to 
its  dimensions  with  the  rocks  which  include  it,  and  it  is  almost 
universally  the  case  that  a  vein  which  is  productive  in  one  rock 
ceases  to  be  so  as  it  is  followed  from  this  into  another.  The 
width  of  veins  is  very  variable,  as  would  naturally  result  from 
the  form  of  the  original  fissures  ;  and  that  of  any  single  vein  is 
subject  to  great  irregularities,  especially  where  its  Avails  have 
been  moved  subseepiently  to  their  separating,  so  as  no  longer  to 
present  corresponding  depressions  and  prominences  opposite  each 
other.  In  places,  the  fissures  will  thus  be  found  nearly  closed 
by  the  contact  of  the  two  Avails,  and  in  others,  opening  out  into 
wide  spaces  by  their  separation.  The  common  width  of  a  vein 
is  about  six  feet.     They  range  from  a  width  of  a  feAV  inches  to 


86  RIGHT    TO    MINERAL    DEPOSITS.  §  44 

hundreds  of  feet.     Veins  are,  however,  not  rich  in  proportion  to 
their  size,  and  some  of  the  smallest  are  the  most  profitable. 

Masses  of  the  wall-rock  are  sometimes  met  with  in  the  vein, 
so  large  that  the  dividing  of  the  vein  around  them  appears  like 
the  leading  off  of  a  branch,  nor  is  this  found  to  be  a  mistake 
until  the  divided  portions  meet  again  on  the  other  side  of  the 
interposed  mass.  The  miners  call  such  a  mass  a  "  horse,"  prob- 
ably from  the  vein  going  down  each  side  of  it  like  a  saddle  on 
the  back  of  a  horse.  The  ores  occur  in  bunches,  strings,  and 
layers,  very  irregularly  distributed,  and  usually  of  many  varie- 
ties associated  together.  The  ores  of  one  metal  commonly  prevail 
either  throughout  the  mine,  or  to  a  certain  depth,  below  which 
others  may  be  found  more  productive.  They  often  lie  in  courses 
or  parallel  belts,  which  slope  in  one  or  the  other  direction  on 
the  line  of  the  vein,  and  between  such  courses  the  workings  are 
comparatively  unproductive.  Large  developments  of  ore  are 
looked  for  where  branches  drop  into  the  main  vein.  Near  the 
surface,  veins  are  not  often  found  so  rich  as  at  some  depth  be- 
low, at  least  beyond  the  reach  of  atmospheric  influences ;  but 
when  once  in  what  the  miners  call  "settled  ground,"  no  im- 
provement need  generally  be  expected  as  the  result  merely  of 
greater  depth.1 

§  44.   Definitions  of  terms  in  common  use. 

JRoch  in  place — As  used  in  the  Mining  Acts  of  Congress,  has 
always  received  the  most  liberal  construction  that  the  language 
will  admit  of,  and  every  class  of  claims  that,  cither  according  to 
scientific  accuracy  or  popular  usage,  can  be  classed  and  applied 
for  as  a  "  vein  or  lode,"  may  be  patented  under  the  law.  The 
object  of  the  law  is  to  dispose  of  the  mineral  lands  of  the 
United  States  for  money  value,  and  it  is  a  matter  of  indiffer- 
ence to  the  Government  whether  the  metal  occurs  in  the  form 
of  a  ima  or  false  vein. 

1  New  Aii).  Cyclop.  "  MinfT.il  Vein,"  citing  "Report  on  tho  Geology  of  Corn- 
wall, I  i.-mui  :■  ml  West  Somerset,"  by  Henry T.  De la Beche  (London,  1839).  Dc  la 
rich*  '  minerule,  by  a.  m.  ll.  de  Villefoase  (Paris,  L819).  Lehrbuch  der  Chemis- 
■  „  en  ""'/  phyirtcaliachen  Oeologio,  byGustav  Bischof  (Bonn,  1854).    Papers  of  the 

Proceedings  oi  the  Geological  Society  of  Cornwall,"  by  Messrs.  Robert  "W. 
I  ox,  Joseph  Carne,  John  Hawkins,  and  others.  Whitney's  "  Metallic  Wealth 
of  the    I'niied   Stales."     <  'otta's  "  Contributions  to  tho  Knowledge  of  Mineral 

Veins." 


§  44  RIGHT   TO   MINERAL    DEPOSITS.  87 

A  lode — In  mining,  is  a  vein  of  mineral  substance ;  usually  a 
vein  of  metallic  ore.  "  A  metallic  vein,  or  any  regular  vein  or 
course,  whether  metallic  or  not,  commonly  a  metallic  vein."  1 

A  vein — In  mining  parlance,  is  usually  applied  to  a  small 
lode ;  in  geology,  any  seam  of  rock  material,  intersecting  strata 
crosswise. 

"  A  seam  or  layer  of  any  substance,  more  or  less  wide,  inter- 
secting a  rock  or  stratum,  and  not  corresponding  with  the  strati- 
fication ;  often  limited,  in  the  language  of  miners,  to  such  a 
layer  or  course  of  metal  or  ore."  2 

It  often  includes,  as  in  the  instance  of  the  Pennsylvania  coal 
formations,  layers,  or  what  are  properly  strata  or  stratifications. 

A  quartz  ledge — In  a  particular  case,  was  defined  to  be  "  a 
stratum  of  quartz  rock,  running  in  a  seam  of  the  bed-rock  along 
the  face  of  the  hill,  in  some  places  showing  above  the  surface 
of  the  bed-rock,  in  some  places  above  the  bed-rock,  but  covered 
with  surface  earth,  and  in  other  places  dipping  entirely  beneath 
the  bed-rock.' 

A  spw — As  used  among  the  quartz  miners  of  California, 
means  a  lateral  branch  from  the  main  lead,  not  returning  to  it, 
but  losing  itself  in  the  surrounding  soil,  and  diminishing  the 
dimensions  of  the  main  ledge  by  its  own  breadth. 

A  feeder. — A  small  vein  starting  from  some  distant  point, 
running  into  the  main  lead,  and  enlarging  it  to  the  extent  of 
its  own  breadth. 

Float  ore — Means  those  isolated  masses  of  ore  or  mineral 
which  are  separated  from  the  regular  leads,  and  corresponds 
with  the  term  "masses"  as  found  in  the  books.  The  primary 
condition  of  all  minerals  is  in  "  leads,"  but  the  convulsions  of 
the  world  have  produced  what  are  now  termed  "  masses," 
"lodes,"  "nests,"  etc.,  all  separate  and  distinct  things.4 

Where  quartz  rock  was  broken  and  parted  from  the  origi- 
nal vein,  but  it  was  found,  as  a  fact,  that  it  was  a  portion  of  the 
same  quartz  lode  or  claim,  it   was  held   that,  if  this  were  the 

1  Webster's  Die. 

2  Ibid.     See  Supra. 

s  Brown  v.  Quartz  M.  Co.  15  Cal.  155 

4  Ibid. ;  Ure's  Die.  Vol.  2,  pp.  1GG,  1G7;  Blancbard  &  Weeks'  Cases  on  Mines, 
Minerals,  and  Mining  Water  Eights,  21.  22.  See  Ibid.  Glossary,  for  further  defi- 
nitions. 


88  RIGHT   TO    MINERAL    DEPOSITS.  §  44 

case,  it  was  immaterial  whether  it  was  separated  from  the  origi- 
nal vein  or  not,  whether  it  was  upon  the  surface  or  beneath  it, 
or  in  what  condition  the  quartz  was,  the  first  locator  of  the  lode 
was  entitled  to  it ;  and  was  not  confined  simply  to  the  solid 
quartz  actually  embodied  in  the  bed-rock,  but  was  entitled  to  the 
loose  quartz  rock  and  decomposed  material  which  were  once  a 
part  of  the  lode,  and  were  detached  so  far  as  the  general 
formation  of  the  ledge  could  be  traced.  The  right  of  the  quartz 
miner  came  from  his  appropriation ;  and  whenever  his  claim 
is  defined,  there  is  no  reason,  said  the  Court,  "  why  the  ap- 
propriation may  not  as  well  take  effect  upon  quartz  in  a  de- 
composed state  as  any  other  sort,  or  why  the  condition  to  which 
natural  causes  may  have  reduced  the  rock  should  give  charac- 
ter to  the  title  of  the  locator."  Such  quartz  rock,  therefore, 
would  be  included  under  the  general  term  of  a  "  quartz  ledge."1 

Silver-bearing  ore. — In  an  indictment  for  grand  larceny  of 
silver-bearing  ore,  it  was  held  that  the  Avords  "  silver-bearing 
ore,"  as  used  in  the  indictment,  had  reference  to  a  portion  of  vein- 
matter  which  had  been  extracted  from  a  lode  and  assorted, 
separated  from  the  mass  of  waste  rock  and  earth,  and  thrown 
aside  for  milling  or  smelting  purposes,  or  taken  away  from  the 
ledge  ;  and  that  the  language  used  in  the  indictment  necessarily 
implied  that  the  ore  had  been  severed  from  the  freehold  prior  to 
the  time  of  its  asportation.2  Of  course,  had  the  ore  been  con- 
sidered as  annexed  to  the  freehold,  it  could  not  have  been  the 
subject  of  larceny.3 

Tailings. — "  'Tailings  '  may  be  defined  to  be  the  refuse  part 
of  stamped  ore,  thrown  behind  the  tail  of  the  buddlc  or  washing 
apparatus,  which  is  dressed  over  again  to  secure  whatever  metal 
may  exist  in  it."  Where  land  was  of  no  value,  except  for  the  u  tail- 
ings," and  they  were  valuable  only  for  the  gold  and  silver  which 
they  contained,  and  neither  party  claimed  the  land  for  any  pur- 
pose except  that  of  securing  such  tailings,  and  for  mining  pur- 
poses only,  it  was  held  that,  "  although  not  a  mining  claim  within 
tin' shirt   meaning  of  the  expression,  as  generally  used  in  this 

1  Bltrachard  &  Weeks'  Cases  on  Mines,  Minerals,  and  Mining  Water  Rights, 
Chap.  i. 
1  stale  /-.  Berryman,  8  Nev.  270, 
:  People  ' .  William  ;,  35 Gal.  <;?:>. 


§  45  RIGHT   TO    MINERAL    DEPOSITS.  89 

country,  still  it  is  so  closely  analogous  to  it  that  the  propriety  of 
subjecting  the  acquisition  and  maintenance  of  the  possession  of  it 
to  the  rules  governing  the  acquisition  of  the  right  of  possession 
to  a  strict  mining  claim,  at  once  suggests  itself.  The  only  value 
attached  to  the  land  results  from  the  precious  metals  which  may 
be  obtained  from  it.  What  is  the  difference  how  these  metals 
may  have  been  deposited  there,  so  far  as  a  case  of  this  kind  is 
concerned?  It  is  distributed  through  a  certain  stratum  of  earth, 
which  must  be  dug  up  and  put  through  a  certain  milling  pro- 
cess, as  in  case  of  any  ordinary  metalliferous  earth.  If  the 
land  be  valuable  only  for  the  metal  which  it  may  contain,  and 
it  is  claimed  by  neither  party  for  any  other  purpose,  the  acqui- 
sition of  title  to  it  should  manifestly  be  governed  by  the  rules 
ordinarily  controlling  the  acquisition  of  title  or  the  right  of 
possession  to  mining  claims.  We  do  not  pretend  to  hold  the 
land  here  in  question  to  be  mineral  land,  but  only  that  it  is  so 
clearly  analogous  thereto  that  the  laws  controlling  the  possession 
of  one  should  govern  the  other."  1 

"  Mined  coal "  and  ore,  completely  severed  from  the  land,  is 
personal  property,  and  so  treated.2 

§  45.  Who  may  acquire  patent. — No  one  but  a  citizen,  or 
a  person  who  has  declared  his  intention  to  become  such,  can 
have  the  privilege  of  locating  a  mine,  or  acquiring  a  patent 
therefor.  The  reason  of  the  rule  was  to  prevent  foreigners 
who  might  be  inimical  to  the  well-being  and  prosperity  of  the 
Government  from  obtaining  possession  and  control  of  the  vast 
interests  which  grow  out  of  the  mineral  lands  of  the  United 
States. 

In  the  case  of  the  Kempton  mine,  the  application,  after  set- 
ting out  the  location  and  transfer  of  the  claim,  alleged  "  that  all 
the  above  named  locators  of  said  claim  and  their  grantees  are 
citizens  of  the  United  States." 

This  was  the  only  allegation  or  proof  on  this  point  contained 
in  the  entire  record.  It  was  objected  that  there  Avas  no  allega- 
tion or  proof  that  the  original  locators  of  the  Kempton  mine 
were  citizens  of  the  United  States,  or  that  they  had  declared 
their  intention  to  become  such  at  the  time  the  location  was  made. 

1  Rogers  v.  Cooney,  7  Nevada,  213.  2Lykens  v.  Dock,  G2  Perm.  St.  232. 


90  EIGHT    TO    MINERAL    DEPOSITS.  §  46 

The  Secretary,  in  deciding  the  case,  said  :  "  I  do  not  wish  to 
be  understood  as  deciding  that  a  person  who  is  not  a  citizen,  or 
has  not  declared  his  intention  to  become  such,  cannot  make  a 
location  of  a  mine,  or  dispose  of  it,  provided  he  afterward  be- 
comes a  citizen  before  he  disposes  of  the  mine.  '  Naturaliza- 
tion has  a  retroactive  effect  so  as  to  be  deemed  a  waiver  of  all 
liability  to  forfeiture.'  (Osterman  v.  Baldwin,  6  Wall.  122.) 
An  assignor  can  transfer  no  greater  interest  to  his  assignee  than 
he  himself  possesses.  While  he  is  unnaturalized  he  has  no  right 
to  locate  a  mine.  If  he  does  so,  and  disposes  of  it  before 
naturalization,  a  subsequent  naturalization  would  not,  in  my 
opinion,  save  his  location.  If,  therefore,  it  appeared  in  this 
case  that  the  original  locators  were  not  citizens,  or  had  not  de- 
clared their  intention  to  become  such  at  the  time  their  location 
was  made,  and  that  they  had  not  become  citizens  when  they 
transferred  the  mine,  I  should  have  no  hesitation  in  holding  that 
the  transfer  was  invalid,  and  the  claim  of  the  applicants  was 
not  good.  But  there  is  no  such  allegation  or  proof  in  this  case, 
and  I  should  not  be  justified  in  presuming  a  state  of  facts  which 
would  work  a  forfeiture  of  the  claim.  The  allegations,  or 
pleadings,  (if  I  may  be  allowed  the  expression)  in  proceedings 
of  this  kind,  should  be  construed  liberally,  as  I  have  heretofore 
held,  and  not,  as  common  law,  most  strongly  against  the  pleader. 
Under  this  rule  of  construction,  I  find  myself  obliged  to  over- 
rule the  objection  as  to  citizenship,  which  is  accordingly  done."  1 

§  46.  Application  by  aliens. — No  title  in  mining  claims 
can  be  held  by  aliens  prior  to  the  issuance  of  patents  therefor. 
They  can  claim  no  title,  and  can  convey  none. 

In  case  of  the  application  for  patent  for  the  Kcmpton  mine, 
the  Secretary  of  the  Interior  held  that  "  if  it  appeared  in  the 
case  that  the  original  locators  were  not  citizens,  or  had  not  dc- 
clared  their  intention  to  become  such  at  the  time  their  location 
w:is  made,  and  that  they  had  not  become  citizens  when  they 
transferred  the  mine,  I  should  have  no  hesitation  in  holding  that 
the  transfer  was  invalid,  and  the  claim  of  the  applicants  was 
not  good."   And  accordingly,  where  a  party  alleged  that  he  came 

1  In  t<:  Kempton  Mine,  Decision  of  Secretary  Interior.  Jan.  2d.  1875,  1  Copp's 
Land-owner.  178. 


§   47  EIGHT    TO    MINERAL    DEPOSITS.  91 

into  possession  by  purchase  from  certain  Chinese,  and  did  not 
show  any  other  or  previous  right,  it  was  held  that,  as  at  the  time 
the  aliens  claimed  the  premises,  they  could  not,  under  the  law, 
hold  title  to  the  same,  and,  having  no  authority  of  law  for  lay- 
ing claim  to  the  premises,  they  could  transfer  no  title  to  the 
applicant.  It  was,  however,  said,  that  had  the  applicant,  after 
the  purchase,  made  a  re-location  of  the  mine,  made  the  required 
improvements,  and  otherwise  complied  with  the  law,  he  would 
have  been  in  condition  to  apply  for  a  patent.  But  none  of  these 
points  were  shown  or  alleged,  and  the  application  was  rejected.1 

§  47.  Citizenship — Who  is  a  citizen. — The  only  parties 
entitled  to  the  benefits  of  the  acts  are  citizens  of  the  United 
States,  and  those  who  have  dec1  *-°.d  their  intentions  to  become 
citizens.     None  others  are  entitled. 

A  citizen  is  sometimes  said  to  be  a  person  who,  under  the  laws 
and  Constitution  of  the  United  States,  has  a  right  to  vote  for 
representatives  in  Congress  and  other  public  officers,  and  is 
qualified  to  fill  offices  in  the  gift  of  the  people.2  This  definition 
excludes  women  and  children.  A  citizen  of  the  United  States 
is  a  native-born  or  naturalized  person,  of  either  sex,  who  owes 
allegiance  to,  and  is  entitled  to  protection  from,  the  United 
States,  or  a  person  who  is  made  a  citizen  by  treaty,  stipulation, 
or  by  constitutional  or  statutory  law. 

A  corporation,  being  artificial,  invisible,  intangible,  existing 
only  in  contemplation  of  law,  and  in  theory  immortal,  it  is 
apparent  that,  in  general,  the  terms  "  citizen  "  and  "  corporation  " 
are  distinct,  and  have  widely  different  significations.3 

Still,  there  has  grown  up  a  rule  which  treats  a  corporation, 
for  the  purpose  of  suing  and  being  sued,  as  a  citizen.  It  is  a 
rule  of  convenience.  But  the  extent  of  the  doctrine  in  the 
United  States  Courts  at  first  appeared  to  be  that  if  all  the  stock- 
holders were  citizens  of  the  State  where  the  suit  was  pending, 
the  corporation  might  sue,  and  the  rule  seems  to  have  been  that 
a  corporation  aggregate  could  not  in  its  corporate  capacity  be 

1Beckner  v.  Coates,  Decision  of  Acting  Commissioner,  April  24th,  187G,  3 
Copp's  Land-owner,  18 ;  Affirmed  by  Secretary  of  Interior,  Sept.  20th,  18."6 ; 
Ibid.  104.    Ante,  Sec.  45. 

2 1  Bouv.  Die.  231. 

8  Dartmouth  College  v.  Woodward,  4  Wheat.  636 


92  RIGHT    TO    MINERAL    DEPOSITS.  §  47 

a  citizen.  The  parties  could  only  sue  when  considered  as  a 
company  of  individuals,  who  must  be  citizens.1  This  rule,  how- 
ever, was  afterward  greatly  modified,  and  in  Louisville  R.  R. 
Co.  v.  Letson,  2  How.  550,  it  was  held  that  a  citizen  of  one 
State  could  sue  a  corporation  which  had  been  created  by  and 
transacted  its  business  in  another  State,  where  the  suit  was 
brought,  although  some  of  the  members  of  the  corporation  were 
not  citizens  of  the  latter  State. 

Justice  Wayne  said  that  a  corporation,  created  by  a  State  to 
perform  its  functions  under  the  authority  of  that  State,  and 
only  suable  there,  though  it  may  have  members  out  of  the  State, 
seemed  to  him  to  be  a  person,  though  an  artificial  one,  inhabit- 
ing and  belonging  to  that  State,  and  therefore  entitled,  for  the 
purpose  of  suing  and  being  sued,  to  be  deemed  a  citizen  of  that 
State. 

He  further  said,  that  he  was  unable  to  reconcile  these  qualities 
of  a  corporation — residence,  habitancy,  and  individuality — with 
the  doctrine  that  a  corporation  aggregate  cannot  be  a  citizen  for 
the  purposes  of  a  suit  in  the  Courts  of  the  United  States,  unless 
in  consequence  of  a  residence  of  all  the  corporators  being  of 
the  State  in  which  the  suit  is  brought.2 

Notwithstanding  that  Justice  Wayne,  in  L.  R.  Co.  v.  Letson, 
Supra,  said  that  a  corporation  was  to  be  deemed  a  citizen,  for 
the  purpose  of  suing  or  being  sued,  Chief  Justice  Taney,  in 
a  later  case,  said  that  he  presumed  that  no  one  ever  supposed 
that  the  artificial  being,  created  by  an  act  of  incorporation, 
could  be  a  citizen  of  a  State,  in  the  sense  in  which  that  word 
is  used  in  the  Constitution  of  the  United  States.3  Now,  inas- 
much as  the  Constitution  of  the  United  States  refers  to  the 
jurisdiction  of  the  United  States  Courts,  as  extending  to  contro- 
versies between  citizens  of  different  States,  etc.,  and  therefore 
declares  them  to  be  capable  of  suing  and  being  sued  in 
the  United  States  Courts,  it  would  seem  that  some  one  had 
supposed  that  a  corporation  could  be  a  citizen,  in  the  sense  used 
in   the  Constitution,  and  that  the  tribunal  making  the  "  supposi- 

i  Strawbrldge  v.  Curtis,  3  Cranch,  266;  U,  S.  v.  Dcveaux,  5  Oranch.  84;  VicKa- 
burg  '    :  I'. nun,  1 1  Pet.  60. 

o,  Marshall  v.  B.  &  0.  R,  B.  Go.  16  How.  U.  S.  327. 
'  ovingtoo  Drawbridge  Co.  v.  Shepherd,  20  How.  233. 


§  48  RIGHT   TO   MINERAL    DEPOSITS.  93 

tion  "  was  no  less  an  authority  than  the  same  Supreme  Court  of 
the  United  States,  in  the  Letson  case.1 

If  any  rule  can  be  deduced  from  these  fluctuating  opinions 
of  the  highest  Court  of  the  country,  it  is  probably  this.  That 
the  quality  of  citizenship  was  given  to  a  corporation  from  the 
necessity  of  the  case,  and  for  the  purpose  of  allowing  it  to  sue  and 
be  sued,  and  for  that  alone,  and  that  a  corporation  is  in  no 
other  sense  a  citizen  within  the  meaning  of  that  term  as  used  in 
the  Constitution,  or  in  the  general  laws  relating  to  public  lands. 
Such  was  the  construction  given  to  the  first  section  of  the  Min- 
ing Act  of  1866,  by  the  Assistant  Attorney-General.2 

The  Act  of  1872,  however,  was  more  explicit  upon  the  rights  of 
corporations  to  apply  for  patents.  Sec.  63  conferred  the  right  of 
application  upon  "  any  person,  association,  or  corporation  au- 
thorized to  locate  a  claim,"  etc.,  and  in  regard  to  proof  of  citi- 
zenship, it  is  provided  4  that  it  may  consist,  in  the  case  of  a  "  cor- 
poration organized  under  the  laws  of  the  United  States,  or  of 
any  State  or  Territory  thereof,"  of  the  filing  of  a  certified  copy 
of  their  charter  or  certificate  of  incorporation. 

These  provisions  were  doubtless  intended  to  obviate  the  per- 
plexities and  difficulties  arising  from  the  ambiguous  language 
of  the  Act  of  1866,  which  referred  to  "  any  person  or  associa- 
tion of  persons."  But  these  provisions,  in  their  turn,  it  is  im- 
portant to  consider,  as  they  are  not  so  full  as  to  have  escaped  the 
necessity  of  construction.5 

§  48.  Proof  of  citizenship. — Sec.  2321  of  the  Kevised 
Statutes  is  as  follows  :  "  Proof  of  citizenship,  under  this  chapter, 
may  consist,  in  the  case  of  an  individual,  of  his  own  affidavit 
thereof ;  in  the  case  of  an  association  of  persons  unincorporated, 
of  the  affidavit  of  their  authorized  agent,  made  on  his  own  knowl- 
edge, or  upon  information  and  belief ;  and  in  the  case  of  a  cor- 
poration organized  under  the  laws  of  the  United  States,  or  of 

1  See  Decision  of  Commissioner,  July,  18G9,  and  September  1,  18G8,  Zab.  L.  L. 
221-234. 

2  In  re  New  Idria  Mine,  Opinion  of  Assistant  Att'y-Gen.  July  21st,  1871;  Copp's 
U.  S.  Mining  Decisions,  47,  5a 

8  Rev.  St.  Sec.  2325. 

4  Ibid.  Sec.  2321. 

s  Sec.  2,  14  U.  S.  Stats.  252. 


94  RIGHT    TO    MINERAL    DEPOSITS.  §  48 

any  State  or  Territory  thereof,  by  the  filing  of  a  certified  copy 
of  their  charter  or  certificate  of  incorporation."  1 

The  proof,  therefore,  necessary  to  establish  the  citizenship  of 
applicants  for  mining  patents,  may  consist,  in  the  case  of  an  in- 
dividual claimant,  of  his  own  affidavit  of  the  fact ;  in  the  case 
of  an  association  not  incorporated,  of  the  affidavit  of  their 
authorized  agent,  made  on  his  own  knowledge,  or  upon  informa- 
tion and  belief;  and  setting  forth  the  residence  of  each  person 
forming  the  association.  This  affidavit  must  be  accompanied 
by  a  power  of  attorney  from  the  parties  forming  such  associa- 
tion, authorizing  the  person  who  makes  the  affidavit  of  citizen- 
ship to  act  for  them  in  the  matter  of  their  application  for 
patent;  and  in  the  case  of  an  incorporated  con^any,  organized 
under  the  laws  of  the  United  States,  or  the  laws  of  any  State 
or  Territory  of  the  United  States,  by  the  filing  of  a  certified 
copy  of  their  charter  or  certificate  of  incorporation.  These 
affidavits  of  citizenship  may  be  taken  before  the  register  or 
receiver,  or  any  other  officer  authorized  to  administer  oaths.2  In 
case  of  an  individual  or  an  association  of  individuals,  who  do 
not  appear  by  their  duly  authorized  agent,  there  is  now  required 
the  affidavit  of  each  applicant,  showing  whether  he  is  a  native 
or  naturalized  citizen,  when  and  where  born,  and  his  residence. 
In  case  an  applicant  has  declared  his  intention  to  become  a  cit- 
izen, or  has  been  naturalized,  his  affidavit  must  show  the  date, 
place,  and  the  Court  before  which  he  declared  his  intention,  or 
from  which  his  certificate  of  citizenship  issued,  and  present  res- 
idence. 

The  requirements  in  reference  to  proof  of  citizenship  have 
not  been  uniform.  At  first,  under  the  Act  of  18GG,  in  requiring 
proof  of  citizenship,  where  the  applicant  was  a  corporation,  a 
copy  of  their  charter,  or  certificate  of  incorporation,  might  be 
filed  in  lieu  of  evidence  of  citizenship.  In  case,  however,  the 
;q>l>licant  was  an  individual  or  an  association  of  persons  unin- 
corporated, affidavits  of  citizenship,  or  of  having  filed  declara- 

1  R.  B.  2321,  Sec.  7,  Act  72;  17  U.  S.  Stat.  04.  Sec  Sec  23C5  R.  S.  The  words 
"and  nothing  herein  contained  shall  be  construed  to  prevent  the  alienation  of 
the  title  conveyed  by  a  patent  Cora  mining  claim  to  any  person  whatever," 
were  added  to  Bee.  7,  and  arc  new  in  Sec  2326,  Rev.  Stat.  U.  S. 

ilbdivisions  03,  94  ;  Instructions  June  10th,  1872;  Instructions  Feb.  1st,  1S77, 
Subdivisions  78-81;  Land  Office  Report,  1872,  page  41. 


§  48  RIGHT   TO    MINERAL    DEPOSITS.  95 

tions  of  intention  to  become  citizens,  were  required  to  be  filed.1 
Bat  subsequently,  this  order  was  revoked,  and  in  case  the  appli- 
cation was  made  by  an  association  of  persons,  incorporated  or 
unincorporated,  satisfactory  proof  was  required  that  each  mem- 
ber of  such  association  was  a  citizen  of  the  United  States,  or 
had  filed  his  declaration  of  intention  to  become  a  citizen.2 

Where  such  application  was  made  by  persons  claiming  to  be 
native-born  citizens  of  the  United  States,  there  was  required 
the  affidavit  of  each  person  so  claiming  that  he  was  a  native- 
born  citizen,  stating  the  place  of  his  birth,  such  affidavit  to  be 
taken  before  a  notary  public,  officer  of  a  Court  of  Record,  or 
the  register  or  receiver  of  the  land  district  wherein  the  claim 
lay. 

Where  the  application  was  made  by  a  person  claiming  to 
have  filed  a  declaration  of  intention  to  become  a  citizen,  he  was 
required  to  present  a  certified  copy  of  such  declaration,  under 
seal  of  the  Court  in  which  it  was  made. 

Where  such  application  was  made  by  a  person  claiming  to  be 
a  naturalized  citizen  of  the  United  States,  he  was  required  to 
present  his  naturalization  certificate,  or  a  certified  copy  thereof, 
under  seal  of  the  Court  from  which  the  original  issued.  Where 
the  application  was  made  by  an  incorporated  company,  it  was 
again  required  that  they  furnish  a  certified  copy  of  their  cer- 
tificate of  incorporation,  besides  evidence  of  the  citizenship  of 
each  member  or  stockholder  of  such  company. 

Where  the  application  was  made  by  an  association  of  persons 
unincorporated,  evidence  was  required  of  the  citizenship  of  each 
person  forming  such  association,  as  before  stated.3 

But  it  was  found,  in  the  case  of  incorporated  companies, 
having  numerous  stockholders,  a  matter  of  great  difficulty  to 
procure  all  the  individual  affidavits,  owing  to  the  fact  that  the 
parties  were  often  scattered  in  different  parts  of  the  country,  or 
in  some  instances  traveling  abroad.  The  previous  requirements 
were  therefore  again  changed,  and  when  the  application  was 
made  by  a  person,  or  by  an  association  of  persons,  not  incorpo- 
rated, claiming  to  be  native-born  or  naturalized  citizens  of  the 

1  Instructions  Aug.  8th,  1S70,  Copp's  U.  S.  Mining  Decisions,  257. 

2  Ibid.  Aug.  Cd,  1871,  Ibid.  2G7. 
2  Ibid.  Sept.  7th,  1871,  Ibid, 


96  JIIGHT   TO    MINERAL    DEPOSITS.  §  48 

United  States,  there  was  required  the  affidavit  of  each  person  so 
claiming,  that  he  was  such  a  citizen  ;  these  affidavits  to  be  made 
before  a  notary  public,  officer  of  a  Court  of  Record,  or  the 
register  or  receiver  of  the  land  district,  and  in  any  case  where 
it  might  be  satisfactorily  shown,  under  oath,  that  the  affidavit  of 
any  claimant  could  not  be  readily  obtained,  by  reason  of  his  ab- 
sence in  a  foreign  country,  or  in  consequence  of  his  whereabouts 
or  place  of  residence  being  unknown,  the  citizenship  of  such 
claimant  might  be  established  by  the  affidavit  of  another  person, 
who  must  not  only  testify  to  the  citizenship  of  such  claimant, 
but  also  state  the  facts  upon  which  his  knowledge  was  based, 
such  as  when,  where,  and  for  how  long  he  had  known  him ; 
whether  he  had  exercised  the  elective  franchise  in  the  United 
States,  and  any  other  points  proper  to  be  received  as  evidence 
of  citizenship.1 

It  is  the  announced  intention  of  the  Department  to  so  con- 
strue the  acts  as  to  enable  applicants  for  patents  who  are  in  the 
actual  and  rightful  possession  of  mining  claims  by  virtue  of 
compliance  with  the  local  laws  and  regulations  and  the  Con- 
gressional enactments,  to  make  the  proof  required  before  pat- 
ents can  issue,  at  the  least  expense  and  inconvenience  possible.2 

It  is  sufficient  to  allege  citizenship  or  declaration  of  citizen- 
ship, though  the  Department  may  prescribe  the  form  of  the  re- 
quired affidavit. 

The  portion  of  a  mining  claim  sold  to  an  alien  cannot  be  pat- 
ented while  such  owner  is  an  alien,  but  on  his  declaration  to 
become  a  citizen,  his  right  dates  back  to  his  purchase,  and  he 
may  thereupon  secure  a  U.  S.  patent  for  his  claim. 

Naturalization  has  a  retroactive  effect,  and  is  a  waiver  of  all 
liability  to  forfeiture,  and  a  confirmation  of  the  alien's  former 
title.3     Certified  copies  of  certificates  of  naturalization  are  not 

1  Instructions  March  26th,  1S72,  Copp's  U.  S.  Mining  Decisions,  2C8;  Ibid.  Sept. 
Til,    1871. 

-  Decision  of  Commissioner,  February  3d,  1873,  Copp'sU.  S.  Mining  Decisions, 
158.  Instructions  Feb.  1st.,  1877,  paragraphs  93,  94.  See  Instructions,  Sept.  7th, 
1871;  Copp's  Mining  Derisions,  208,  March  2Gth,  1872;  Ibid.  Decision  of  Com- 
iin  sioner,  Sept.  llth,  1873;  Ibid.  223. 

-  -  J  j  j  i"  Kempton  Mine,  Decision  Secretary  of  tho  Interior,  January  2d,  1875, 
1  Copp's  Land-owner,  178;  Decision  of  Commissioner,  July  18th,  1876,  3  Copp's 
Land-owner,  60;  Osterman  '•.  Baldwin,  6  Wall.  116;  Jackson  v.  Beach,  John- 

'ii    Cases,  I'll.    Sec,  ;iis<>,  Fairfaixv.  Hunter,  7Cranch, 603;  Orrii.  Hodgson,  4 


§  49  RIGHT    TO    MINERAL    DEPOSITS.  97 

necessary,  and  the  Land  Office  has  no  power  to  require  such 
proof.  But  the  affidavits  must  state  whether  the  applicants  are 
native  or  naturalized  citizens,  and  when  and  where  born.  In 
case  an  applicant  has  declared  his  intention,  or  has  been  natural- 
ized, his  affidavit  must  also  show  the  date,  place,  and  the  Court 
before  which  he  declared  his  intention,  or  from  which  his  cer- 
tificate of  citizenship  is  issued,  and  present  residence.1 

§  49.  Affidavits  of  citizenship — Requiring  certificates 
of  naturalization. — From  Sec.  2321,  Rev.  Stats.  U.  S.,  it  will 
be  seen  that  the  method  to  be  pursued  for  the  purpose  of  estab- 
lishing the  qualification  of  citizenship  is  explicitly  set  forth, 
and  it  is  not  within  the  jurisdiction  of  the  Department  to 
impose  an  additional  condition,  if  such  condition  is  at  variance 
with  the  terms  of  the  act.  The  Land  Office  had  required  appli- 
cants, who  alleged  that  they  were  naturalized  citizens,  to  fur- 
nish certified  copies  of  their  certificates  of  naturalization.  But 
this  additional  condition  required  by  the  Office  in  the  matter  of 
the  proof  of  citizenship,  was  not  sustained,  and  it  was  thought 
could  not  be  justified  by  a  consistent  interpretation  of  the  law. 

No  discretion  is  allowed  the  Office,  under  the  "Act  to  pro- 
mote the  development  of  the  mining  resources  of  the  United 
States,"  as  to  what  shall  constitute  sufficient  proof  of  citizen- 
ship, as  in  the  pre-emption  and  homestead  laws.  Applicants  for 
lands  under  said  laws  are  required  to  be  citizens,  or  to  have  de- 
clared their  intention  to  become  such,  and  what  shall  constitute 
proof  of  citizenship  by  declaration  is  a  matter  for  the  consider- 
ation of  the  Office ;  but  in  the  act  under  consideration,  the  man- 
ner of  making  satisfactory  proof  on  this  point  is  expressly  pre- 
scribed. 

Where  citizenship,  therefore,  is  properly  alleged,  copies  of  the 
certificates  of  naturalization  are  not  required  to  be  filed,  appli- 
cants must  file  their  affidavits,  showing  whether  they  are  native 
or  naturalized  citizens,  and  when  and  where  born.  In  case  an 
applicant  has  declared  his  intention  to  become  a  citizen,  or  has 

Wheat.  453;  Craig  v.  Leslie,  3  Wheat.  563;  Craig  «. Radford,  3  "Wheat.  594;  Cross 
v.  DeValle,  1  "Wall.  1 ;  Heirs  v.  Robertson,  11  Wheat.  332. 

1  Decision  of  Secretary  of  the  Interior,  July  29th,  1876,  3  Copp's  Land-owner, 
68;  Instructions,  February  1st,  1877,  Subdivisions  78-81. 

W.  C— 7. 


98  RIGHT    TO    MINERAL    DEPOSITS.  §§  50-51 

been  naturalized,  his  affidavit  must  also  show  the  date,  place, 
and  the  Court  before,  which  he  declared  his  intention,  or  from 
which  his  certificate  of  citizenship  issued.3 

§  50.  Foreign  corporation.  —  A  corporation  created  and 
existing  under  the  laws  of  England  is  not  a  citizen  of  the 
United  States,  and  not  capable  of  asserting  a  claim  to  any  por- 
tion of  the  public  land  of  the  United  States,  or  of  receiving  from 
the  Government  a  title  therefor.  A  "  fund,  "  being  neither  a 
person  nor  an  association,  without  legal  existence,  and  powerless 
to  "  occupy  and  improve  "  a  claim,  or  perform  those  acts  of 
ownership  or  possession  required  of  miners,  as  conditions  es- 
sential to  the  holding  of  claims,  cannot  make  locations  under 
the  United  States  mining  laws.2 

§  51.  Restriction  as  to  proof. — The  operative  sections  of 
the  Act  of  1872  bring  to  the  executive  cognizance  the  applicant 
and  the  adverse  claimant,  and  to  them  applies  its  rule  of  proof  of 
citizenship.  Proof  of  citizenship  of  the  applicant  for  the  patent, 
is  sufficient;  proof  of  citizenship  of  the  original  locators,  and 
intermediate  owners,  is  not  necessary.  The  rule  applies  to  the 
applicant  and  no  one  else,  unless  it  be  the  adverse  claimant.3 

1  Application  of  Mooney,  Decision  of  Acting  Secretary,  July  29th,  1876,  re- 
versing Decision  of  Commissioner,  S.  C.  3  Copp*s  Land-owner,  G8. 

Alien  soldiers. — A  party  made  affidavit  that  he  was  born  in  Germany;  that  he 
came  to  this  country  at  the  age  of  six  years,  and  that  he  had  an  honorable 
discharge  from  the  army.  In  case  his  parents  became  naturalized  before  he 
arrived  at  the  age  of  twenty-one,  it  was  held  that  proof  should  be  made  of  this 
point,  as  he  would  then  be  regarded  as  a  citizen.  The  21st  section  of  the  Act  of 
Congress,  approved  July  17th,  1872,  (12  Stats.  597)  provides  that  any  alien  who 
lias  an  honorable  discharge  from  the  regular  or  volunteer  army  may  become  a 
citizen  of  the  United  States,  upon  h  is  petition,  without  any  previous  declaration 
of  intention.  The  applicant  afterward  made  affidavit  that  his  father  was  natur- 
alized in  Wisconsin  before  lie,  the  son,  arrived  at  the  age  of  twenty-one,  and,  in 
ilie  absence  '<(  an  adverse  claim,  a  patent  was  issued  to  him.  Decision  of 
Commissioner,  August,  l.'lth,  1872,  Copp's  U.  S.  Mining  Decisions,  134. 

-  In  re  (iunboat  Lode;  Decision  of  Commissioner,  June 7th,  1871;  Copp's  U.  S. 
Mining  i  tecisions,  43. 

•'•  Decision  Of  <  ommissioncr,  Dec.  14th,  1874;  In  re  King  of  the  West  Lode;  City 
Roci  <v-  I  '<ali  Claimants  v.  Pitts,  1  Copp's  Land-owner,  140;  In  re  Cash  Lode 
Sept.  7th,  1874,  L  Copp's  Land-owner,  98;  Opinion  of  Assistant  Attorney-General, 
New  [dria  Case,  Land  Office  Report,  1871,  58, 59,60;  Ibid,  pp.81,  Circular  Instruc- 
tions, Aug.  3d,  1871,  Sept.  7th,  1871,  March  26th,  1872,  June  10th,  1872,  para- 
graph 98 


§  52  DIMENSIONS    OF   CLAIMS.  99 


CHAPTER    IV. 

DIMENSIONS  OF  CLAIMS  AND  LOCATIONS  UPON  VEINS  OR  LODES. 

§  52.  Length  and  width  of  lode-claims. 

§  53.  Veins  or  lodes  of  quartz  or  other  rock  in  place. 

§  54.  Location  previous  to  the  Mining  Acts. 

§  55.  "Width  of  lode-claims — Eights  granted  by  the  patent. 

§  56.  Survey  must  conform  to  the  patent. 

§  57.  Manner  of  locating  prior  to  1872. 

§  58.  Several  locations  may  be  made. 

§  59.  Local  regulations. 

§  52.  Length  and  width  of  lode-claims. — Section  2320 
of  the  Revised  Statutes  of  the  United  States  reads  as  follows  : 
"  Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock  in 
j:>1  ace  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other 
valuable  deposits,  heretofore  located,  shall  be  governed  as  to 
length  along  the  vein  or  lode  by  the  customs,  regulations,  and 
laws  in  force  at  the  date  of  their  location.  A  mining  claim 
located  after  the  tenth  day  of  May,  one  thousand  eight  hundred 
and  seventy-two,  Avhether  located  by  one  or  more  persons,  may 
equal,  but  shall  not  exceed,  one  thousand  five  hundred  feet  in 
length  along  the  vein  or  lode ;  but  no  location  of  a  mining  claim 
shall  be  made  until  the  discovery  of  the  vein  or  lode  within  the 
limits  of  the  claim  located ;  no  claim  shall  extend  more  than 
three  hundred  feet  on  each  side  of  the  middle  of  the  vein  at 
the  surface,  nor  shall  any  claim  be  limited  by  any  mining  regu- 
lation to  less  than  twenty-five  feet  on  each  side  of  the  middle 
of  the  vein  at  the  surface,  except  where  adverse  rights  existing 
on  the  tenth  of  May,  eighteen  hundred  and  seventy-two,  render 
such  limitation  necessary.  The  end-lines  of  each  claim  shall  be 
parallel  to  each  other."  1 

!Rev.  Stat.  2320,  Sec  2,  Act  of  1872;  17  U.  S.  Stats.  91.  Sec.  4  of  the  Act  of 
1806,  14  U.  S.  Stats.  252,  read:  "That  when  such  location  and  entry  of  a  mine 
shall  be  upon  unsurveyed  lands,  it  shall  and  may  be  lawf ul,  after  the  extension 
thereto  of  the  public  surveys,  to  adjust  the  surveys  to  the  limits  of  the  premises. 


100  DIMENSIONS    OF    CLAIMS.  §  53 

§  63.   Veins  or  lodes  of  quartz,  or  other  rock  in  place. — 

Mineral-producing  lands  are  divided  by  miners  into  two  classes  : 
1st.  Where  the  mineral  matter  is  within  "  rock  in  place,"  or 
"  in  situ "  ;  2d.  Placers,  and  all  other  forms  of  deposit.  In 
geology,  and  among  miners,  veins  or  lodes  imply  generally  an 
arrcn-eo-ation  of  mineral  matter  found  in  the  fissures  of  the 
rocks  which  inclose  it,  but  are  of  great  variety — veins  differing 
very  much  in  their  formation  and  appearance.  "  Lode  "  is  a 
term  in  general  use  among  the  tin-miners  of  Cornwall,  and  was 
introduced  on  the  Pacific  Coast  by  emigrants  from  the  Cornish 
mines,  and  signifies  a  fissure,  filled  either  by  metallic  or  earthy 
matter.  In  several  of  the  mining  districts,  the  terms  "  lead " 
and  "  ledge  "  are  employed  in  the  local  regulations  concerning 
mines.  "  Lead  "  is  used  to  convey  the  same  idea  as  "  lode,"  while 
"  ledge  "  would  seem  to  indicate  a  layer  or  stratum  of  mineral, 
interposed  between  a  course  or  ridge  of  rocks. 

The  terms  were  probably  not  employed  in  the  acts  in  their 
strict  geological  signification.  The  plain  object  of  the  law  is  to 
dispose  of  the  mineral  lands  of  the  United  States  for  money 
value,  and  whatever  form  of  deposit  can  be  embraced  in  the 
general  phrase  "  vein  or  lode  of  quartz,  or  other  rock  in  place  " 
must  be  sold  at  the  rate  of  five  dollars  per  acre.  There  is  to  be 
included  in  the  first  class,  all  lands  wherein  the  mineral  matter 
is  contained  in  veins  or  ledges  occupying  the  original  habitat  or 
location  of  the  metal  or  mineral,  whether  in  true  or  false  veins, 
in  zones,  in  pockets,  or  in  the  several  other  forms  in  which  min- 
erals are  found  in  the  original  rock,  whether  the  gangue  or 
matrix  is  disintegrated  at  the  surface  or  not.1 

affording  to  the  location  and  possession  and  plat  aforesaid,  and  the  Surveyor- 
General  may,  in  extending  the  surveys,  vary  the  same  from  a  rectangular  form 
to  suit  the  circumstances  of  the  country  and  the  local  rules,  laws,  and  customs 
of  miners:  Provided,  that  no  location  hereafter  made  shall  exceed  two  hund- 
red feet  in  Length  alongthe  vein  for  each  locator,  with  an  additional  claim  for 
.«  iy  i"  i  h<-  discoverer  of  the  lode,  with  the  right  to  follow  such  vein  toany 
depth,  with  all  its  dips,  variations,  and  angles,  togetherwith  a  reasonable  quan- 
tity of  surface  for  the  convenient  working  of  the  same  as  fixed  by  local  rules: 
in,'/  iirm  nil ,/  further,  that  no  person  may  make  more  than  one  location  on  the 
same  lode,  and  not  more  ilian  three  thousand  feet,  shall  be  taken  in  any  one 
elaim  by  any  association  of  persons."     See  Sees.  2323,  2337  Rev.  Stat. 

i  decision  of  ( '011110 issioner,  July  15th,  1K7K,  Copp's  U.  S.  Mining  Decisions,  318. 
See  A  rite,  Chap.  3. 


§  54  DIMENSIONS    OF    CLAIMS.  101 

§  54.  Locations  previous  to  the  mining  acts  of  Con- 
gress— Limitation  and  size. — Lodes  discovered  and  located 
previously  to  the  passage  of  the  mining  acts  are  governed  in 
regard  to  their  size  by  the  local  laws,  notwithstanding  that  the 
record  thereof  may  not  have  been  made  till  afterward.1 

Prior  to  1866,  as  a  matter  of  general  notoriety  and  history  in 
all  the  mineral  regions,  miners  held  possessory  rights  by 
"  locations  "  under  local  laws.  These  rights  were  always  locally 
respected  by  the  citizens  and  the  Courts.  Congress,  by  the  Act 
of  1866,  attempted  to  establish  a  general  rule,  by  which 
these  local  rights  should  be  recognized  by  the  Government, 
so  far  as  not  in  conflict  with  the  laws  of  the  United  States.  It 
for  this  purpose  recognized  those  local  laws,  customs,  and 
usages,  and  Avith  reference  to  the  quantity  of  any  lode  to  be 
entered,  applied  two  limitations,  viz :  A  general  one  of  all 
claimants  to  3,000  feet ;  and  with  reference  to  a  certain  specified 
class  of  locations,  those  made  thereafter  a  further  limitation  to 
200  feet,  and  an  additional  claim  for  discovery.  The  intent  was 
considered  to  be  to  recognize  all  locations  in  accordance  with 
existing  law,  subject  to  these  limitations.2 

Where,  therefore,  a  person,  previously  to  the  Act  of  1866, 
located  a  claim  of  1,400  feet,  (a  claim  of  that  size  being  allow- 
able under  the  local  law)  but  did  not  record  it  till  afterward, 
but  the  local  law  required  that  certain  labor,  necessarily  requir- 
ing considerable  time,  should  be  performed  prior  to  recording, 
and  the  location  was  not  susceptible  of  being  recorded  at  the 
date  of  the  Act  of  1866,  yet  was  nevertheless  good  and  valid  so 
far  as  it  had  progressed,  and  was  recorded  in  proper  time,  and 
as  soon  as  the  work  was  performed,  the  location  was  held  com- 
plete previous  to  the  passage  of  the  act,  and  therefore  gov- 
erned by  the  local  laws.3 

In  those  cases  where  there  was  no  general  law  in  force  at  the 
date  of  location,  regulating  the  size  of  the  claim,  and  no  written 
district  laws,  the  matter  was  governed  by  the  local  customs  or 

1  See  Ante,  Sec.  24. 
*  See  Ante,  Chap.  1. 

3  In  re  Silver  Ore  Lode,  Decision  of  Commissioner    Aug.  26th,  1874,  1  Copp's 
Land-owner.  83.    See  Ante.  Sec.  24. 


102  DIMENSIONS    OF    CLAIMS.  §  55 

rules  of  miners  in  the  district  where  the  claim  was  situate.1  If 
there  were  district  laws,  or  local  laws,  the  number  of  feet  on  a 
lode  that  might  be  located  prior  to  the  acts  of  Congress  was 
governed  by  those  laws.2 

Since  the  Act  of  1872,  and  the  Revised  Statutes,  the  size  is 
limited  by  the  provisions  of  those  enactments.3 

It  was  held,  under  the  Act  of  1866,  that  if  ten  men  should  lo- 
cate 200  feet  each  on  a  ledge,  one  or  two  of  them  might  buy 
out  the  rest,  and  apply  for  and  secure  a  patent  for  all  the 
ground,  by  showing  the  title  by  deeds,  if  the  purchase  was  sanc- 
tioned by  the  local  mining  regulations,  and  the  necessary  ex- 
penditures had  been  made.4 

§  55.  Width  of  lode-claims — Rights  granted  by  the 
patent. — The  uniform  construction  is,  that  no  claim  located 
after  May  10th,  1872,  can  exceed  600  feet  in  width,  under  any 
circumstances ;  whether  a  location  made  after  that  date  can 
equal  600  feet  in  width  depends  entirely  upon  the  local  regula- 
tions, or  State  or  Territorial  laws,  in  force  in  the  several  mining 
districts.  But  the  latter  cannot  limit  the  surface  width  to  less 
than  fifty  feet,  unless  adverse  claims  existing  on  the  10th  of  May, 
1872,  render  such  latter  limitation  necessary.  In  other  words, 
the  miners  of  the  district,  or  the  State  or  Territorial  legis- 
latures, are  authorized  by  the  act  to  regulate  and  control  the 
width  of  a  location,  providing  that  the  width  shall  not  exceed 
600  feet,  nor  be  limited  to  less  than  fifty  feet. 

Where  an  application  is  made  for  a  patent  for  a  mine  located 
prior  to  May  10th,  1872,  the  patent,  when  issued,  conveys  to  the 
grantee  the  right  to  follow  the  particular  lode  named  in  the 
patent,  to  the  number  of  feet  expressed  in  the  conveyance, 
although  the  lode  should,  in  its  course,  leave  the  surface  ground 
described  in  the  patent,  and  enter  the  land  adjoining.  The 
patent  not  only  grants  him  the   right  to   follow  the  particular 

1  In  re  South  Corastoek  C  \  S.  M.  Co.  Decision  of  Commissioner,  Dec.  29th, 
1875,  -  <'op|>'s  Land-owner,  L46. 

-  In  re  San  A.ugustin  Mining  Co.  Decision  of  Commissioner,  Sept.  22d,  1870, 
Copp'sU.  S.  Mining  Decisions,  32, 

'Dec!  i"ii  of  Commissioner,  Nov.  18th,  1873,  Copp's  U.  S.  Mining  Decisions, 
2  35. 

1  Decision  "I'  Comr.  Nov.  6th,  1869,  Copp's  U.  S.  Mining  Decisions,  23. 


§§  56-7  DIMENSIONS    OF    CLAIMS.  103 

lode  named,  to  the  number  of  feet  expressed  in  the  patent,  along 
the  course  thereof,  but  also  grants  him  the  right  to  follow  said 
lode  to  any  depth.  It  also  conveys  to  the  grantee  the  right  to 
follow  all  other  veins,  lodes,  or  ledges,  the  tops  or  apexes  of  which 
lie  within  the  exterior  boundary  lines  of  his  survey,  if  the  same 
were  not  adversely  claimed  on  the  10th  day  of  May,  1872,  only 
to  such  an  extent,  however,  along  the  course  thereof,  as  may  be 
embraced  by  such  exterior  boundaries,  but  to  any  depth.1 

If  a  greater  width  of  surface  ground  is  embraced  in  the  ap- 
plication than  the  local  law  allows,  the  size  of  the  claim  must 
be  diminished  to  conform  to  that  law  before  entry,  and  the  Sur- 
veyor-General will  be  ordered  to  make  new  plat  and  field- 
notes.2 

The  Act  of  1872  does  not  fix  the  width  of  a  lode-claim,  but 
simply  provides  that  it  shall  not  exceed  600  feet  in  width,  nor 
be  limited  to  less  than  fifty  feet  in  width,  except  where  adverse 
rights,  existing  on  the  10th  of  May,  1872,  shall  render  such 
limitation  necessary.  The  width  is  regulated  by  local  laws, 
customs,  or  rules  of  miners,  not  in  conflict  with  the  act. 

No  location  of  a  lode  made  since  May  10th,  1872,  can  exceed 
1,500  feet  in  length.  No  survey  of  a  lode-claim  will  be  approved 
which  exceeds,  in  length  or  width,  the  number  of  feet  prescribed 
by  law,  at  the  date  of  the  location.3 

§  56.  Survey  must  conform  to  the  patent. — The  survey 
should  conform  to  the  application  for  patent  so  far  as  the  courses 
are  concerned.  Where  the  final  survey  covered  but  a  small  por- 
tion of  the  premises  described  in  the  application  for  patent,  a 
re-survey  was  required,  embracing  only  the  number  of  feet  to 
which  the  parties  were  entitled  under  the  local  law,  and  con- 
forming to  the  patent  in  regard  to  courses.4 

§  57.  Manner  of  locating  claims  on  veins  or  lodes  sub- 
sequently to  May  10th,  1872. — No  lode-claim,  located  after 

1  Decision  of  Acting  Commissioner,  May  20th,  1873,  Copp's  U-  S.  Mining  De- 
cisions, 201. 

2  In  re  War  Eagle  Mine,  Decision  of  Commissioner.  May  1st,  1873,  Copp's  LT.  S. 
Mining  Decisions,  195. 

3  Decision  of  Commissioner,  Feb.  11th,  1875;  1  Copp's  Land-owner,  179. 

4  In  re  Gus  Belmont  Lode,  Decision  of  Commissioner,  August  14th3  1873,  Copp's 
U.  S.  Mining  Decisions,  215. 


104  DIMENSIONS    OF    CLAIMS.  §  57 

May  10th,  1872,  can  exceed  a  parallelogram  1,500  feet  in  length 
by  600  feet  in  width,  but  whether  surface  ground  of  that  width 
can  be  taken,  depends  upon  the  local  regulations,  or  State  or 
Territorial  laws  in  force  in  the  several  mining  districts  ;  and 
no  such  local  regulations,  or  State  or  Territorial  laws,  shall  limit 
a  vein  or  lode-claim  to  less  than  1,500  feet  along  the  course 
thereof,  whether  the  location  is  made  by  one  or  more  persons, 
nor  can  surface  rights  be  limited  to  less  than  fifty  feet  in  width, 
unless  adverse  claims,  existing  on  the  10th  day  of  May,  1872, 
render  such  lateral  limitation  necessary.3 

The  provision  that  no  location  can  be  made  until  after  the  dis- 
covery of  the  vein  or  lode,  within  the  limits  of  the  claim  lo- 
cated, was  evidently  to  prevent  the  incumbering  of  the  district 
mining  records  with  useless  locations,  before  sufficient  work  has 
been  done  thereon  to  determine  whether  a  vein  or  lode  has 
really  been  discovered  or  not.2 

The  claimant  should,  therefore,  prior  to  recording  his  claim, 
unless  the  vein  can  be  traced  upon  the  surface,  sink  a  shaft  or 
run  a  tunnel  or  drift  to  a  sufficient  depth  therein  to  discover  and 
develop  a  mineral-bearing  vein,  lode,  or  crevice ;  should  determ- 
ine, if  possible,  the  general  course  of  such  vein  in  either  direc- 
tion from  the  point  of  discovery,  by  which  direction  he  will  be 
governed  in  making  the  boundaries  of  his  claim  on  the  surface, 
and  should  give  the  course  and  distance  as  nearly  as  practicable 
from  the  discovery  shaft  on  the  claim,  to  some  permanent,  well- 
known  points  or  objects,  such,  for  instance,  as  stone  monuments, 
bl sized  trees,  the  confluence  of  streams,  points  of  intersection  of 
well-known  gulches,  ravines,  or  roads,  prominent  buttes,  hills, 
etc.,  which  may  be  in  the  immediate  vicinity,  and  which  will 
serve  to  perpetuate  and  fix  the  locus  of  the  claim,  and  render  it 
susceptible  of  identification  from  the  description  thereof  given 
in  the  record  of  locations  in  the  district/" 

The  claimant  should  also  state  the  names  of  adjoining  claims, 
or,  if  none  adjoin,  the  relative  positions  of  the  nearest  claims  ; 
should  drive  ;i  post  or  erect  a  monument  of  stones  at  each  cor- 

1  Instructions  June  10th,  1872.  Subdivision  11;  Instructions  February  1st,  1877, 
Bubd  L9. 

-  [bid.  Subdivision  13;  Ibid. 
:;  [bid.  Subdivision  14:  Ibid.  Subdivisions  12-15. 


§  58  DIMENSIONS    OF    CLAIMS.  105 

ner  of  his  surface  ground,  and  at  the  point  of  discovery,  or  dis- 
covery shaft ;  should  fix  a  post,  stake,  or  board  upon  which 
should  be  designated  the  name  of  the  lode,  the  name  or  names 
of  the  locators,  the  number  of  feet  claimed,  and  in  which  direc- 
tion from  the  point  of  discovery,  it  being  essential  that  the  lo- 
cation notice  filed  for  record,  in  addition  to  the  fore^oins  de- 
scription,  should  state  whether  the  entire  claim  of  1,500  feet  is 
taken  on  one  side  of  the  point  of  discovery,  or  whether  it  is 
partly  upon  one  and  partly  upon  the  other  side  thereof,  and  in 
the  latter  case,  how  many  feet  are  claimed  upon  each  side  of  such 
discovery  point.1 

Within  a  reasonable  time  (twenty  days  J  after  the  location 
shall  have  been  marked  on  the  ground,  notice  thereof,  accurately 
describing  the  claim  in  manner  aforesaid,  should  be  filed  for  rec- 
ord with  the  proper  recorder  of  the  district,  who  will  thereupon 
issue  the  usual  certificate  of  location.2 

In  order  to  hold  the  possessory  right  to  a  claim  of  1,500  feet 
of  a  vein  or  lode  located  since  May  10th,  1872,  the  act  requires 
that  until  a  patent  shall  have  been  issued  therefor,  not  less  than 
$100  worth  of  labor  shall  be  performed,  or  improvements  made 
thereon  within  one  year  from  the  date  of  such  location,  and 
annually  thereafter,  in  default  of  which  the  claim  will  be  sub- 
ject to  re-location  by  any  other  party  having  the  necessaxy 
qualifications,  unless  the  original  locator,  his  heirs,  assigns,  or 
legal  representatives,  have  resumed  work  thereon  after  such 
failure  and  before  such  re-location.3 

The  importance  of  attending  to  these  details  in  the  matter  of 
location,  labor,  and  expenditure  is  obvious,  when  it  is  under- 
stood that  a  failure  to  give  the  subject  proper  attention  may  in- 
validate the  claim.4 

§  58.  Several  locations  may  be  made. — There  is  no  pro- 
vision of  law  to  prevent  parties  from  locating  other  claims  upon 
the  same  lode,  outside  of  the  first  location  made  on  the  vein  or 

1  Instructions  June  10th,  1872,  Subdivision  15 ;  Instructions  February  1st,  1877, 
Subdivisions  9-19. 
2Ibid.  Subdivision  16;  Ibid. 

3  Ibid.  Subdivision  17. 

4  Ibid.  Subdivision  18;  Instructions  Feb.  1st,  1877,  Subdivisions  17-19. 


106  DIMENSIONS    OF    CLAIMS.  §  59 

lode.     If  a  lode  or  vein  3,000  feet  in  length  is  discovered,  two 
locations  may  be  made,  each  of  1,500  feet  thereon.1 

§  59.  Local  regulations. — The  mining  regulations  of  the 
different  mining  districts  remain  intact  and  in  full  force  with  re- 
gard to  the  size  of  locations,  where  they  do  not  permit  locations 
in  excess  of  the  limits  fixed  by  Congress.  Where  such  regula- 
tions permit  locations  in  excess  of  the  maximum  fixed  by  Con- 
gress, they  are  restricted  accordingly.  A  local  regulation  is 
valid,  providing  that  a  placer  claim,  for  instance,  shall  not  ex- 
ceed 100  feet  square.^ 

The  local  rules  and  laws  must  not  be  inconsistent  with  the  laws 
of  the  United  States.  Where  the  local  law  conflicts  with  the 
acts  of  Congress,  the  local  law  must  give  way,  whether  it  be  a 
State  or  Territorial  statute,  a  regulation,  or  a  custom.  The 
act  will  control  as  to  the  number  of  feet  claimed.  The  claim 
must  conform  to  the  laws  in  force  at  the  date  of  its  location.3 

In  the  absence  of  any  State  or  Territorial  enactment  regulat- 
ing the  occupancy  and  possession  of  mining  claims,  miners  may 
alter  or  amend  the  laws  of  the  district ;  but  this  action  will  not 
affect  claims  already  located.  Should  the  miners  deem  it  advis- 
able to  amend  their  district  laws,  they  may  re-locate  their  claims 
under  and  conformably  to  such  enacted  laws,  and  upon  comply- 
in  <x  with  the  acts  of  Congress  and  the  instructions  of  the  Office, 
may  enter  and  receive  patents  for  the  same.4 

1  Decision  of  Acting  Commissioner,  June  17th,  1873,  Copp's  U.  S.  Mining  De- 
cisions, 207. 

2  Ibid.  March  19th,  1873,  Ibid.  164. 

3  Decision  of  Commissioner,  August  4th,  1871,  Copp's  U.  S.  Mining  Decisions, 
67;   [bid.  August  25th,  1871;  Ibid.  59. 

4  Decision  of  Commissioner,  August  25th,  1871,  Copp's  U.  S.  Mining  Decisions, 
59. 


§  60  LOCATORS'    RIGHT   OF   POSSESSION.  107 


CHAPTER  V. 

LOCATORS'  RIGHT  OF  POSSESSION  AND  ENJOYMENT  OF  SURFACE 
GROUND,  AND  OF  THE  LODE. 

§  60.  Locators'  rights  of  possession  and  enjoyment. 

§  61.  Status  of  lode-claims  previously  located. 

§  62.  Patents  for  veins  or  lodes  previously  issued. 

§  63.  Priority  of  location,  importance  of. 

§  60.   Locators'  rights  of  possession  and  enjoyment. — 

Section  2322  of  the  Revised  Statutes  reads  as  follows :  "  The 
locators  of  all  mining  locations  heretofore  made  or  which 
shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge, 
situated  on  the  public  domain,  their  heirs  and  assigns,  where  no 
adverse  claim  exists  on  the  tenth  day  of  May  one  thousand  eight 
hundred  and  seventy  two,  so  long  as  they  comply  with  the  laws 
of  the  United  States,  and  with  State,  territorial,  and  local  regu- 
lations not  in  conflict  with  the  laws  of  the  United  States  govern- 
ing their  possessory  title,  shall  have  the  exclusive  right  of 
possession  and  enjoyment  of  all  the  surface  included  within 
the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which 
lies  inside  of  such  surface  lines  extended  downward  verti- 
cally, although  such  veins,  lodes,  or  ledges  may  so  far  depart 
from  a  perpendicular  in  their  course  downward  as  to  extend 
outside  of  the  vertical  side-lines  of  such  surface  locations. 
But  their  right  of  possession  to  such  outside  parts  of  such  veins 
or  ledges  shall  be  confined  to  such  portions  thereof  as  lie  be- 
tween vertical  planes  drawn  downward  as  above  described, 
through  the  end-lines  of  their  locations,  so  continued  in  their 
own  direction  that  such  planes  will  intersect  such  exterior  parts 
of  such  veins  or  ledges.  And  nothing  in  this  section  shall 
authorize  the  locator  or  possessor  of  a  vein  or  lode  which  ex- 
tends in  its  downward  course  beyond  the  vertical  lines  of  his 
claim  to  enter  upon  the  surface  of  a  claim  owned  or  possessed 
by  another."  1 

!Rev.  Stats.  2322,  Sec.  3,  Act  1872, 17  Stats.  91.  See  Sees.  2320,  2324,  Rev.  Stats. 
U.  S. 


108  locators'  eight  or  possession.  §§  61-2 

§  61.   Status  of   lode-claims   previously  located. — The 

status  of  lode-claims  located  previously  to  the  Act  of  1872  was 
not  changed  by  that  act  with  regard  to  their  extent  along  the 
lode  or  width  of  surface,  such  claims  being  restricted  and  gov- 
erned, both  as  to  their  lateral  and  linear  extent,  by  the  State, 
Territorial,  or  local  laws,  customs,  or  regulations  which  were  in 
force  in  the  respective  districts  at  the  date  of  such  location,  in 
so  far  as  the  same  did  not  conflict  with  the  limitations  fixed  by 
the  Act  of  1866.     (14  U.  S.  Stats.  251.1) 

Mining  rights,  acquired  under  such  previous  locations,  were, 
however,  enlarged  by  the  Act  of  May  10th,  1872,  in  the  fol- 
lowing respect,  viz :  The  locators  of  all  such  previously  taken 
veins  or  lodes,  their  heirs  and  assigns,  so  long  as  they  comply 
with  the  laws  of  Congress,  and  with  State,  Territorial,  or  local 
regulations,  not  in  conflict  therewith,  governing  mining  claims, 
are  invested  by  the  act  with  the  exclusive  possessory  right  of 
all  the  surface  inclosed  within  the  lines  of  their  locations,  etc., 
as  fully  provided  in  Sec.  3,  Act  1872.2 

The  law  limits  the  possessory  right  to  veins,  lodes,  or  ledges, 
other  than  the  one  named  in  the  original  location,  to  such  as 
were  not  adversely  claimed  at  the  date  of  the  Act  of  May 
10th, 1872  ;  and  where  such  other  vein  or  ledge  Avas  so  adversely 
claimed  at  that  date,  the  right  of  the  party  so  adversely  claim- 
ing is  in  no  way  impaired  by  said  act,3  or  by  the  Revised  Stat- 
utes. 

§  62.   Patents  for  veins  or  lodes  previously  issued. — 

Rights  under  patents  for  veins  or  lodes,  granted  under  previous 
legislation  of  Congress,  were  enlarged  by  the  Act  of  1872,  so 
:i-  to  invest  the  patentee,  his  heirs  or  assigns,  with  title  to  all 
veins,  lodes,  or  ledges,  as  they  are  fully  described  in  Section  3, 
Act  of  1872,  (Revised  Statutes,  Sec.  2322)  providing  for  a  lo- 
cator's rights  of  possession  and  enjoyment;  but  all  veins,  lodes, 
or   ledges,  the  top  or   apex  of  which  dies    inside   such   surface 

1  Instructions  June  lot  1 1,  1872,  Subdivision  2;  Instructions  February  1st,  1877, 
Subdivisions  '_'  -6. 

?Bev.  Stats.  2322;  Instructions  Juno  10th,  1872,  Subdivision  3;  Instructions 
February  1st,  L877,  Subdivisions  2-6. 

;:  1 1.  June  10th,  1872,  Subdivision  4;  Instructions  February  1st,  1877, 

Subdivisions  2-6. 


§  63  LOCATOKS'   RIGHT   OF   POSSESSION.  109 

locations,  other  than  the  one  named  in  the  patent,  which  were 
adversely  claimed  at  the  date  of  the  act,  are  excluded  from  such 
conveyance  by  patent.1 

Applications  for  patents  for  mining  claims,  pending  at  the  date 
of  the  Act  of  May  10th,  1872,  may  be  prosecuted  to  final  de- 
cision in  the  General  Land  Office,  and  where  no  adverse  rights 
are  affected  thereby,  patents  will  be  issued,  in  pursuance  of  the 
provisions  of  the' law.2 

§  63.  Priority  of  location  is  of  great  importance  in  the  title 
of  mining  property  ;  the  older  the  better.  The  Act  of  1872  pro- 
tects  mining  claims  located  previous  thereto,  and  gives  the  owners 
all  lodes  within  their  surface  ground,  not  adversely  claimed  at 
the  date  of  the  act.  After  that  date,  no  person  has  the  right  to 
prospect  for  veins  on  another  party's  surface  ground ;  and  where 
the  old  mine  is  held  in  accordance  with  local  and  Congressional 
law,  another  claim  cannot  lawfully  be  extended  so  as  to  em- 
brace any  part  of  the  surface  ground  or  veins  owned  under  the 
old  location.3 

In  all  cases  where  a  party  claims  a  lode  which  has  been  re- 
located, he  should  furnish  proof  that  the  re-location  was  made 
in  accordance  with  the  local  law,  and  that  he  was  entitled  to  re- 
locate it.4 

1  Instructions  June  10th,  1872,  Subdivisions  7.  8 ;  Instructions  February  1st, 
1877,  Subdivisions  2-6. 

2  Ibid.  Subdivision  8;  Ibid. 
3Copp's  Land-owner,  31. 

4Decision  of  Commissioner,  Sept.  25th  1873;  Copp's  U.  S.  Mining  Decisions, 
225.  See,  as  to  locations  under  mining  customs  and  regulations,  Blanchard  & 
Weeks'  Leading  Cases  on  Mines  and  Mining  Water  Rights,  Chaps.  7-9. 


110  TUNNEL   RIGHTS.  §  64 


CHAPTER  VI. 

TUNNEL  EIGHTS. 

§  64.  Owners  of  tunnel  rignts. 
§  65.  Patenting  tunnel  rights. 
§  66.    Expenditures  upon  tunnel. 

§  64.  Owners  of  tunnels,  rights  of. — Sec.  2323,  Eev.  Stats. 
U.  S.,  reads  :  "  Where  a  tunnel  is  run  for  the  development  of  a 
vein  or  lode,  or  for  the  discovery  of  mines,  the  owners  of  such 
tunnel  shall  have  the  right  of  possession  of  all  veins  or  lodes 
within  three  thousand  feet  from  the  face  of  such  tunnel  on  the  line 
thereof,  not  previously  known  to  exist,  discovered  in  such  tun- 
nel, to  the  same  extent  as  if  discovered  from  the  surface  ;  and 
locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not  appear- 
ing on  the  surface,  made  by  other  parties  after  the  commence- 
ment of  the  tunnel,  and  while  the  same  is  being  prosecuted  Avith 
reasonable  diligence,  shall  be  invalid  ;  but  failure  to  prosecute 
the  work  on  the  tunnel  for  six  months  shall  be  considered  as  an 
abandonment  of  the  right  to  all  undiscovered  veins  on  the  line 
of  such  tunnel."  2 

An  Act  of  Feb.  11th,  1875,  provided  as  follows  :  "  That  Sec. 
2324  of  the  Revised  Statutes  be,  and  the  same  is  hereby, 
amended  so  that  where  a  person  or  company  has  or  may  run  a 
tunnel  for  the  purpose  of  developing  a  lode  or  lodes,  owned  by 
said  person  or  company,  the  money  so  expended  in  said  tunnel 
shall  b<;  taken  and  considered  as  expended  on  said  lode  or  lodes, 
whether  located  prior  to  or  since  the  passage  of  said  Act ;  and 
such  person  or  company  shall  not  be  required  to  perform  work 
on  the  surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as 
required  by  said  act." 

The  effect  of  Sec.  2323,  R.  S.,  is  simply  to  give  the  proprie- 
tors of  a  mining  tunnel,  run  in  good  faith,  the  possessory  right 
to  L,600  Eee1  of  any  blind  lodes  cut,  discovered,  or  intersected 

)  Eev.  BtatS.  2823,  Sec.  4.  Act  1872.  17  U.  S.  Stats.  92.  See  Soc.  2320. 


§  64  TUNNEL    RIGHTS.  Ill 

by  such  tunnel,  which  were  not  previously  known  to  exist, 
within  3,000  feet  from  the  face  or  point  of  commencement  of 
such  tunnel,  and  to  prohibit  other  parties,  after  the  commence- 
ment of  the  tunnel,  from  prospecting  for  and  making  location 
of  lodes  on  the  line  thereof,  and  within  the  distance  of  3,000 
feet,  unless  such  lodes  appear  upon  the  surface,  or  were  pre- 
viously known  to  exist.1 

The  term  "  face,"  as  used  in  the  section,  is  construed  and 
held  to  mean  the  first  working  face  formed  in  the  tunnel,  and  to 
signify  the  point  at  which  the  tunnel  actually  enters  cover,  it 
being  from  this  point  that  the  3,000  feet  are  to  be  counted,  upon 
which  prospecting  is  prohibited.2 

To  avail  themselves  of  the  benefits  of  the  act,  the  proprietors 
of  a  mining  tunnel  are  required,  at  the  time  they  enter  cover  as 
mentioned,  to  give  proper  notice  of  their  tunnel  location,  by 
erecting  a  substantial  post,,  board,  or  monument  at  the  face  or 
point  of  commencement  of  the  tunnel,  upon  which  there  should 
be  posted  a  good  and  sufficient  notice,  giving  the  names  of  the 
parties  or  company  claiming  the  tunnel  right,  the  actual  or  pro- 
posed course  or  direction  of  the  tunnel,  the  height  and  width 
thereof,  and  the  course  and  distance  from  such  face  or  point  of 
commencement  to  some  permanent  well-known  objects  in  the 
vicinity,  by  which  to  fix  and  determine  the  locus  in  the  manner 
shown  to  be  applicable  to  locations  of  veins  or  lodes  ;  and  at 
the  time  of  posting  such  notice  they  shall,  in  order  that  miners 
or  prospectors  may  be  enabled  to  determine  whether  or  not  they 
are  within  the  lines  of  the  tunnel,  establish  the  boundary  lines 
thereof  by  stakes  or  monuments  placed  along  such  lines  at 
proper  intervals,  to  the  terminus  of  the  3,000  feet  from  the 
face  or  point  of  commencement  of  the  tunnel ;  and  the  lines  so 
marked  will  define  and  govern  as  to  the  specific  boundaries, 
within  which  prospecting  for  lodes  not  previously  known  to 
exist  is  prohibited  while  work  on  the  tunnel  is  being  prosecuted 
with  reasonable  diligence.3 

At  the  time  of  posting  notice  and  marking  out  the  lines  of 

1  Instructions  June  10th,  1872,  Subdivision  20:  Instructions  February  1st,  1877. 
Subdivisions  20-26. 

2  Ibid.  Subdivision  21 ;  Ibid. 
8  Ibid.  Subdivision  22 :  Ibid. 


112  •  TUNNEL   EIGHTS.  §  65 

the  tunnel,  a  full  and  correct  copy  of  such  notice  of  location, 
defining  the  tunnel  claim,  must  be  filed  for  record  with  the 
mining  recorder  of  the  district,  to  which  notice  must  be  attached 
the  sworn  statement  or  declaration  of  the  owners,  claimants, 
or  projectors  of  such  tunnel,  setting  forth  the  facts  in  the  case  ; 
stating  the  amount  expended  by  themselves  and  their  predeces- 
sors in  interest  in  prosecuting  work  thereon  j  the  extent  of  the 
Stork  performed  ;  and  that  it  is  bona  fide  their  intention  to  pros- 
ecute work  on  the  tunnel  so  located  and  described  with  reason- 
able diligence,  for  the  development  of  a  vein  or  lode,  or  for  the 
discovery  of  mines,  or  both,  as  the  case  may  be.1 

The  notice  of  location  must  be  duly  recorded,  and,  with  the 
sworn  statement  attached,  kept  on  the  recorder's  files  for  future 
reference.2 

The  Land  Office  takes  particular  care  that  no  improper  ad- 
vantage is  taken  by  parties  making  or  professing  to  make  tunnel 
locations,  ostensibly  for  the  purposes  named  in  the  statute,  but 
really  for  the  purpose  of  monopolizing  the  lands  lying  in  front 
of  their  tunnels,  to  the  detriment  of  the  mining  interests,  and  to 
the  exclusion  of  bona  fide  prospectors  or  miners ;  but  will  hold 
such  tunnel  claimants  to  a  strict  compliance  with  the  terms  of 
the  act ;  and,  as  reasonable  diligence  on  their  part  in  prosecuting 
the  work  is  one  of  the  essential  conditions  of  their  implied  con- 
tract, negligence  or  want  of  due  diligence  will  be  construed  as 
working  a  forfeiture  of  their  right  to  all  undiscovered  veins  on 
the  line  of  such  tunnel.3 

§  65.  Patenting  tunnel  locations. — There  is  no  provision 
of  law  for  patenting  tunnel  locations,  but  such  lodes  as  are  dis- 
covered in  running  a  tunnel  may  be  patented  upon  a  full  com- 
pliance with  the  law.4 

The  uniform  construction  given  by  the  Land  Office  to  these 
provisions  in  regard  to  tunnel  locations  is  as  follows  :  The  line 
of  the  tunnel  is  held  to  be  the  width  thereof  and  no  more,  and 

1  Instructions  June  10th,  1872,  Subdivision  23;  Instructions  February  1st,  1877, 
Subdivisions  20-26. 
-  [bid.  Subdivision  24. 

•;  Hud.  Subdivision  26;  I nstructions February  1st,  1877,  Subdivisions  20-26 
4  Decision  of  Commissioner,  April  15th,  1873;  Copp's  U.  S.  Mining  Decisions, 

19a 


§  66  TUNNEL    RIGHTS.  113 

upon  this  line  only  is  prospecting  for  blind  lodes  prohibited 
while  the  tunnel  is  in  progress,  and  the  right  is  granted  to 
the  tunnel-owners  to  1,500  feet  of  each  blind  lode  not  previously 
known  to  exist,  which  may  be  discovered  in  such  tunnel ;  but 
that  other  parties  are  in  no  way  debarred  from  prospecting  for 
blind  lodes,  or  running-  tunnels,  so  long  as  they  keep  without  the 
line  of  the  tunnel  as  above  denned,  the  said  line  being  required 
by  the  regulations  to  be  marked  on  the  surface  by  stakes  or 
monuments  placed  along  the  same  from  the  face  or  point  of 
commencement  to  the  terminus  of  the  tunnel  line.  When  a 
lode  is  struck  or  discovered  for  the  first  time  by  running  a 
tunnel,  the  tunnel-owners  have  the  option  of  recording  their 
claim  of  1,500  feet  all  on  one  side  of  the  point  of  discov- 
ery or  intersection,  or  partly  upon  one  and  partly  upon  the 
other  side  thereof,  but  in  no  case  can  they  record  a  claim  so  as 
to  absorb  the  actual  or  constructive  possession  of  other  parties 
on  a  lode  which  had  been  discovered  and  claimed  outside  the 
line  of  the  tunnel  before  the  discovery  thereof  in  the  tunnel.1 

Where,  therefore,  a  location  described  a  tract  of  land  3,000 
by  1,500  feet,  and  embraced  more  than  100  acres  of  land,  it 
was  held  that  there  was  no  authority  for  locations  of  this  size. 

The  law  gives  to  the  tunnel-owner  only  such  lodes  as  may  be 
discovered  in  such  tunnel,  and  only  prevents  the  location  by 
other  parties  of  lodes  upon  the  line  of  such  tunnel,  "  not  appeai'- 
ing  on  the  surface."2 

§  66.  Expenditures  upon  a  tunnel  regarded  as  expend- 
itures upon  a  lode. — The  Act  of  1866  did  not  fix  any  amount 
of  work  or  expenditure  as  necessary  to  hold  a  claim,  but  left 
that  to  be  regulated  by  the  miners  themselves.  It  did,  how- 
ever, prescribe  that  an  amount  of  not  less  than  $1,000  should 
be  expended  on  the  claim,  as  one  of  the  conditions  precedent  to 
obtaining  a  patent.  The  Act  of  1872  repealed  the  Act  of  1866, 
in  part,  and   after  its  passage,  permitted  1,500  linear  feet  to  be 

1  Corning  Tunnel  Mining  and  Reduction  Co.  v.  Bell;  In  re  Slide  Lode,  Decision 
of  Commissioner  Nov.  3d,  1876;  3  Copp's  Land-owner,  130,  131,  195.  Land  Office 
Report,  1872,  60,  61;  Decision  of  Commissioner,  Sept.  20th,  1872;  Copp's  U.  S.  Min- 
ing Decisions,  144. 

2  Decision  of  Commissioner,  Sept.  20th,  1872;  Copp's  U.  S.  Mining  Decisions, 
144. 

W.  C— 8. 


114  TUXXEL    RIGHTS.  §  QQ 

located  as  one  claim  on  a  lode,  which  location  may  be  made  by 
an  individual,  or  by  an  association  of  persons  jointly  ;  but  no 
lode-claim,  located  after  the  passage  of  the  Act  of  May  10th, 
1872,  can  exceed  1,500  feet,  whether  located  by  one  or  more 
persons.  The  interpretation  given  to  the  provisions  in  regard 
to  expenditure,  is  this :  That  a  claim  on  a  lode,  located  subse- 
quently to  May  10th,  1872,  may  be  1,500  feet,  and  no  more, 
whether  located  by  one  or  more  persons,  and  that  to  hold  such 
i-laim  of  1,500  feet  requires  an  annual  expenditure  of  ftlOO 
thereon,  and  that,  on  all  lodes  located  prior  to  May  10th,  1872, 
there  must  be  an  annual  expenditure  of  not  less  than  ten  dol- 
lars, in  labor  or  improvements,  for  each  100  feet  so  claimed, 
along  the  lode ;  and  that  where  a  number  of  such  claims,  of 
100  or  200  feet  each,  as  the  case  may  be,  upon  the  same  lode, 
are  held  in  common  by  one  or  more  persons,  the  aggregate 
amount  necessary  to  hold  all  the  claims  so  held  in  common,  on 
a  lode,  at  the  rate  of  ten  dollars  per  100  feet,  may  be  expended 
upon  any  one  claim  thereon,  or  in  other  words,  at  any  one  point 
on  the  lode,  so  held  in  common ;  the  words  "  where  such  claims 
arc  held  in  common,  such  expenditure  may  be  made  on  any  one 
claim,"  being  construed  to  mean  that  where  several  of  these  in- 
dividual locations,  made  previous  to  May  10th,  1872,  upon  the 
same  lode,  are  held  in  common  by  one  or  more  persons,  the  en- 
tire  expenditure  necessary  to  hold  all  the  claims  so  held  in  com- 
mon on  such  lode,  may  be  made  upon  any  one  claim  thereon, 
but  that  expenditures  made  upon  any  one  lode  or  claim,  how- 
ever great,  can  in  no  way  be  made  to  apply  to  other  lodes 
claimed  by  the  same  parties.1 

This  interpretation  of  the  law  remained  in  force,  with  the  fol- 
lowing modification  :  Under  this  view,  it  was  at  first  held  that 
work  done  and  expenditures  made  in  constructing  a  tunnel  in- 
tended i'oi-  the  development  and  improvement  of  lodes,  would  not 
satisfy  the  legal  requirement  as  to  expenditure,  but  such  expend- 
iture or  Labor  was  required  to  be  made  in  good  faith  upon  each 
Lode  claimed,  otherwise  the  same  would  be  subject  to  re-loca- 
tion by  other  parties,  as  provided  by  law;  and  where  a  com- 
pany were  the  claimants  of  nine  separate  lodes,  all  of  which  it 
was  their  purpose  to  develop   and  improve   by  a  mining  tunnel, 

!  [nstructions  February  1st,  1877,  Subdivision  5. 


§  66  TUNNEL   RIGHTS.  115 

run  in  order  to  intersect  the  lodes  below  the  surface,  this  was 
held  not  a  sufficient  compliance  with  the  act.1 

But  this  last  ruling  has  been  superseded  by  the  amendment 
providing  that  "  where  a  person  or  company  has  or  may  run  a 
tunnel  for  the  purposes  of  developing  a  lode  or  lodes,  owned  by 
said  person  or  company,  the  money  so  expended  in  said  tunnel 
shall  be  taken  and  considered  as  expended  on  said  lode  or  lodes, 
whether  located  prior  to  or  since  the  passage  of  said  act ;  and 
such  person  or  company  shall  not  be  required  to  perform  work 
on  the  surface  of  said  lode  or  lodes,  in  order  to  hold  the  same, 
as  required  by  said  act." 

By  this  legislation,  the  requirements  of  Section  2324,  Revised 
Statutes,  in  regard  to  the  expenditure  upon  mining  claims,  are 
so  modified  that  money  which  has  been  or  may  be  expended 
in  running  a  tunnel  for  the  purpose  of  developing  one  or  more 
lodes,  owned  by  such  person  or  company,  shall  be  considered  as 
expended  upon  such  lodes.  The  expenditures  required  upon 
mining-claims  may  be  made  from  the  surface  or  in  running  a 
tunnel  for  the  development  of  such  claims.2 

Tunnel  rights,  diligence,  expenditure. — Locators  of  tunnels, 
under  the  Act  of  May  10th,  1872,  are  required  to  use  reason- 
able diligence  in  working  and  advancing  their  tunnels ;  other- 
wise, such  tunnel  locations  will  be  treated  as  abandoned.  There 
is  no  specified  amount  to  be  expended  to  retain  the  ownership 
of  a  tunnel  location.  The  Act,  approved  March  1st,  1873, 
amending  the  Act  of  May  10th,  1872,  only  refers  to  lode-claims 
located  prior  to  the  passage  of  the  Act  of  May  10th,  1872.3 

'Rev.  Stats.  U.  S.  Sees.  2324,  2323,  Act  May  10th,  1872;  17  U.  S.  Stats.  92,  Act 
March  1st,  1873,  Sec.  5;  17  IT.  S.  Stats.  92,  Act  June  6th,  1874;  Act  July  26th,  1866, 
Sec.  4, 14  U.  S.  Stats.  252;  In  re  Helmick  Silver  Mining  Company,  Decisions  of 
Commissioner  and  Acting  Secretary,  Aug.  27th  and  Sept.  4th,  1872;  Copp's  U.  S. 
Mining  Decisions,  136. 

-Rev.  Stats.  Sec.  2324,  as  amended  by  Act  of  February  11th,  1875;  Decision 
of  Commissioner,  March  11th,  1875;  Skidmore's  Mining  Stats.  47;  Instructions 
February  1st,  1877,  Subdivision  18. 

3  Decision  of  Commissioner,  August  1st,  1873,  Copp's  U.  S.  Mining  Decisions, 
215. 


116  REGULATIONS    AND    CUSTOMS.  §  0)1 


CHAPTEK   VII. 

REGULATIONS    AND    CUSTOMS— EXPENDITURES    AND    IMPROVE- 
MENTS—SURVEYS AND  BOUNDARIES. 

§  67.  Regulations  and  customs. 

§  68.  Definition  of  "claim." 

§  69.  Annual  expenditures  on  placer-claims. 

§  70.  Annual  expenditures  on  lode-claims. 

§  71.  Neglect  of  co-claimants  to  contribute. 

§  72.  Re-located  mines — expenditure. 

§  73.  Amount  of  expenditure  shown  upon  plat  and  field-notes. 

§  74.  Location  and  survey — Boundaries. 

§  75.  Certificate  as  to  improvements. 

§  76.  Fixed  monuments — Courses — Distances. 

§  67.  Regulations  and  customs,  expenditures  and  im- 
provements.— Section  2324  of  the  Revised  Statutes  reads  as 
follows  : 1  "  The  miners  of  each  mining  district  may  make  regu- 
lations not  in  conflict  with  the  laws  of  the  United  States,  or 
with  the  laws  of  the  State  or  Territory  in  which  the  district  is 
situated,  governing  the  location,  manner  of  recording,  amount 
of  work  necessary  to  hold  possession  of  a  mining  claim,  subject 
to  the  following  requirements :  The  location  must  be  distinctly 
marked  on  the  ground  so  that  its  boundaries  can  be  readily 
traced.  All  records  of  mining  claims  hereafter  made  shall 
contain  the  name  or  names  of  the  locators,  the  date  of  the  loca- 
tion, and  such  a  description  of  the  claim  or  claims  located  by  ref- 
erence to  some  natural  object  or  permanent  monument  as  will 
identify  the  claim.  On  each  claim  located  after  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two,  and  until  a  patent 
baa  been  issued  therefor,  not  less  than  one  hundred  dollars 
worth  of  labor  shall  be  performed  or  improvements  made  dur- 
ing each  year.  On  all  claims  located  prior  to  the  tenth  day 
(if  May,  eighteen  hundred  and  seventy-two,  ten  dollars  worth  of 
labor  -hall  be  performed  or  improvements  made  by  the   tenth 

i  Rev.  Stat  2824;  Bee  Sec  5,  Act  of  1872;  17  U.  S.  Stats.  92;  See  Sees.  2331,  2332, 
Rev.  Stats. 


§  67  REGULATIONS    AXD    CUSTOMS.  117 

day  of  June,  eighteen  hundred  and  seventy-four,  and  each 
year  thereafter,  for  each  100  feet  in  length  along  the  vein,  until 
a  patent  has  been  issued  therefor ;  but  where  such  claims 
are  held  in  common,  such  expenditure  may  be  made  upon  any 
one  claim ;  and  upon  a  failure  to  comply  with  these  condi- 
tions, the  claim  or  mine  upon  which  such  failure  occurred 
shall  be  open  to  relocation  in  the  same  manner  as  if  no  location 
of  the  same  had  ever  been  made,  provided,  that  the  original 
locators,  their  heirs,  assigns  or  legal  representatives,  have  not 
resumed  Avork  upon  the  claim  after  failure  and  before  such 
location.  Upon  the  failure  of  any  one  of  several  co-owners  to 
contribute  his  proportion  of  the  expenditures  required  hereby, 
the  co-owners  who  have  performed  the  labor  or  made  the  im- 
provements may,  at  the  expiration  of  the  year,  give  such  de- 
linquent co-owner  personal  notice  in  writing  or  notice  by  publi- 
cation in  the  newspaper  published  nearest  the  claim,  for  at 
least  once  a  week  for  ninety  days,  and  if  at  the  expiration  of 
ninety  days  after  such  notice  in  writing  or  by  publication  such 
delinquent  should  fail  or  refuse  to  contribute  his  proj)ortion  of 
the  expenditure  required  by  this  section,  his  interest  in  the 
claim  shall  become  the  property  of  his  co-owners  who  have 
made  the  required  expenditures."1 

The  time  for  the  first  annual  expenditure  on  claims  located 
prior  to  the  passage  of  the  act,  was  extended  to  the  10th  day  of 
June,  1871,  by  the  Act  of  March  1st,  1873,  amending  Sec.  5 
of  the  Act  of  1872,  (see  17  U.  S.  Stat.  92)  and  again  ex- 
tended to  January  1st,  1875,  by  the  Act  of  June  6th,  1874. 

By  the  Act  of  Feb.  11th,  1875,  amending  the  above  section, 
R.  S.  2324,  the  latter  was  amended  so  that  where  a  person  or 
company  has  or  may  run  a  tunnel  for  the  purposes  of  develop- 
ing a  lode  or  lodes,  owned  by  said  person  or  company,  the  money 
so  expended  in  said  tunnel  shall  be  taken  and  considered  as  ex- 
pended on  said  lode  or  lodes,  whether  located  prior  to  or  since 
the  passage  of  said  act ;  and  such  person  or  company  shall  not 
be  required  to  perform  work  on  the  surface  of  said  lode  or 
lodes  in  order  to  hold  the  same  as  required  by  said  act. 

1  Note. — Sec.  5  of  the  Act  of  1872,  17  U.  S.  Stat.  92,  said:  "Each  year  for  each 
hundred  feet,"  instead  of  "by  the  10th  day  of  June,  1874,  and  each  year 
thereafter."  In  other  respects  the  sections  ar^  identical.  Instructions  Feb.  1, 
1877,  Subd.  C. 


118  REGULATIONS    AND    CUSTOMS.  §§  68-9 

§  68.  Definition  of  "  claim."' — To  obtain  a  patent  under 
the  Act  of  1866,  one  of  the  conditions  precedent  was  that  not 
less  than  -^1,000  should  be  expended  or  improvements  made  upon 
the  "  claim. "  The  term  "  claim,"  as  used  in  the  condition,  be- 
ing held  to  mean  that  portion  of  the  vein  or  lode,  and  adjoining 
surface,  to  which  the  claimant  had  the  right  of  possession  by 
virtue  of  a  compliance  with  the  laws  of  the  United  States,  and 
the  local  customs  or  rules  of  miners  not  in  conflict  therewith.1 

From  and  after  the  date  of  the  Act  of  1872,  in  order  to  hold 
the  possessory  title  to  a  mining  claim  previously  located,  and 
for  which  a  patent  has  not  been  issued,  the  law  requires  that  ten 
dollars  shall  be  expended  annually  in  labor  or  improvements,  on 
each  claim  of  100  feet  on  the  course  of  the  vein  or  lode,  until  a 
patent  shall  have  been  issued  therefor ;  but  where  a  number  of 
such  claims  are  held  in  common  upon  the  same  vein  or  lode,  the 
aggregate  expenditure  that  would  be  necessary  to  hold  all  the 
claims  at  the  rate  of  ten  dollars  per  hundred  feet,  may  be  made 
upon  any  one  claim.2  A  failure  to  comply  with  this  require- 
ment in  any  one  year  subjects  the  claim  upon  which  such  fail- 
ure occurred  to  re-location  by  other  parties,  the  same  as  if  no 
previous  location  thereof  had  ever  been  made,  unless  the  claim- 
ants under  the  original  location  shall  have  resumed  work  there- 
on  after  such  failure  and  before  such  re-location.  The  first 
annual  expenditure  upon  claims  of  this  class  should  have  been 
performed  subsequent  to  May  10th,  1872,  and  prior  to  January 
1st,  1875.  From  and  alter  January  1st,  1875,  the  required 
amount  must  be  expended  annually  until  patent  issues. 

§  69.  Annual  expenditure  not  required  on  placer 
claims. — The  Act  of  1866  only  applied  to  veins  or  lodes  of 
quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar, 
or  copper  ;  hot  by  the  Act  of  1870,  provision  was  made  for 
the  disposal  <>l'  "  elaims  usually  called  placers/'  "  including  all 
forme  <>(  deposit,  excepting  veins  of  quartz  or  other  rock  in 
place."  Neither  of  these  acts  prescribed  the  amount  of  work 
or  expenditure  which   should  be:   made   annually   upon  mining 

1  ixTisinn  <,f  ('(.iimiissioiicr,  Scjit  oi.li,  1872,  Copp'sU.  S.  Mining  Decisions,  136, 
1 12. 
-  instructions  June  10th,  1872,  Subdivision 5;  [bid.  Feb.  1st,  1877,  Subd.  5. 


§  69  REGULATIONS    AND    CUSTOMS.  119 

claims,  to  enable  parties  to  hold  the  same,  but  left  this  matter 
to  be  determined  by  the  local  laws,  rules,  regulations,  and  cus- 
toms. The  Act  of  1872  repealed  certain  portions  of  the 
mining  acts  then  in  force,  and  among  other  things  prescribed 
a  new  mode  of  procedure  for  obtaining  patents  to  mining 
claims. 

The  only  reference  made  to  the  subject  of  annual  expendi- 
tures is  found  in  the  fifth  section.  The  tenth  section  provided  that 
the  Act  of  1870,  "  shall  be  and  remain  in  full  force,  except  as  to 
the  proceedings  to  obtain  a  patent  which  shall  be  similar  to  the 
proceedings  prescribed  by  sections  six  and  seven  of  this  act  for 
obtaining  patents  to  vein  or  lode  claims."  It  was  therefore  the 
intention  of  Congress  to  require  annual  expenditures  only  upon 
vein  or  lode  claims,  leaving  placer  claims  as  they  had  been  pre- 
vious to  the  passage  of  the  Act  of  1872,  subject  to  local  laws, 
rules,  regulations,  and  customs.1 

Extensions  of  time — Re-location. — Mines  located  prior  to 
May  10th,  1872,  upon  which  the  required  amount  has  been 
expended,  and  improvements  made  at  any  time  since  May  10th, 
1872,  and  prior  to  January  1st,  1875,  are  not  subject  to  re-loca- 
tion at  the  latter  date.  A  claim  located  prior  to  May  10th, 
1872,  upon  which  the  required  amount  was  expended  in  actual 
labor  and  improvements,  at  any  time  since  the  10th  of  May, 
1872,  was  not  subject  to  re-location  on  the  1st  of  January, 
1875  ;  providing  the  claimants  thereof  had  in  all  respects  com- 
plied with  the  local  laws.  But  a  claimant  must  make  the  an- 
nual expenditure  upon  his  claim,  which  was  required  by  the 
act,  each  and  every  year  after  January  1st,  1875,  until  the 
patent  shall  have  been  issued  therefor,  to  entitle  him  to  the 
possession  of  the  location. 

Claims  located  since  the  10th  of  May,  1872,  become  liable  to 
re-location  in  case  the  required  amount  of  labor  and  improve- 
ments has  not  been  expended  thereon,  within  one  year  from  the 
date  of  such  location,  and  thereafter  yearly.2 

After  January  1st,  1875,  upon  locations  prior  to  May  10th, 

lltev.  Stat.  2324,  2331,  Decision  of  Acting  Commissioner,  April  25th,  1S74,  1 
Copp's  Land-owner,  18. 

2  Decision  of  Commissioner,  December  2d,  1874,  1  Copp's  Land-owner,  138, 184; 
2  Ibid.  31. 


120  REGULATIONS    AXD    CUSTOMS.  §  70 

1872,  the  like  amount  of  labor  is  required  each  calendar  year. 
On  claims  located  since  May  10th,  1872,  although  it  seems  not 
generally  to  have  been  so  understood,  annual  labor  has  been 
required  upon  all  locations  made  since  May  10th,  1872,  without 
any  postponement.  The  acts  extending  time  to  June  10th,  1874, 
and  afterward  to  January  1st,  1875,  only  apply  to  locations  prior 
to  the  Act  of  1872. 

Persons  who  own  claims  located  prior  to  May  10th,  1872, 
had  until  Jan.  1st,  1875,  to  perform  the  assessment  work  thereon, 
as  required  under  the  provisions  of  the  Congressional  mining 
law.  On  all  claims  located  subsequent  to  May  10th,  1872,  (the 
date  of  the  passage  of  the  law)  the  yearly  expenditure  of  $10 
worth  of  work  for  each  100  feet  was  required  to  be  made 
previous  to  January  1st,  1875.  In  other  words,  all  claims 
located  prior  to  the  passage  of  the  act  went  over  until  Jan.  1st, 
1875 ;  while  those  located  since  the  passage  were  required  to 
comply  with  its  provisions  prior  to  January  1st,  1875. 1 

The  requirements  in  regard  to  expenditures  upon  claims 
located  since  May  10th,  1872,  are  in  no  way  changed  by  the 
amendatory  acts. 2 

§  70.   Annual   expenditure    on    lode-claims,   etc. — The 

construction  given  by  the  office  is,  that  upon  all  claims  lo- 
cated after  May  10th,  1872,  not  less  than  £100  shall  be  ex- 
pended in  labor  or  improvements  during  each  year,  and  that 
the  year  shall  commence  from  the  date  of  the  location  of  the 
claim.  The  annual  expenditure  under  1  he  Act  of  1872  is  re- 
quired until  a  patent  shall  have  been  issued.3 

The  required  amount  might  have  been  expended  at  any  time 
prior  to  the  date  of  the  amendatory  extending  acts,  but  after 
thai  the  law  required  annual  expenditure.4 

The  oilier  has  no  power  to  go  outside  of  the  law,  and  rule 
thai  Sec.  •">  only  had  reference  to  such  claims  as  have  not  been 
improved  to  the  amount  of  $500,  the  amount  required  by  Sec. 

i  Decision  of  Commissioner,  December  2d,  1874,  ICopp's Land-owner,  138,  184; 
2  [bid   31. 

*  Instructions  of  Commissioner,  June  9th,  L874  ;  March  llth,  L875. 

■■  Decision  <>f  Commissioner,  September  nth,  is72,  Gopp's  U.  S.  Mining  Decis- 
ions, [42  ;  i  <  !opp  i  Land  -owner,  34. 

'  Decision  A.cting  Commissioner,  April  20tli;  1S74,  1  Copp's  Land-owner,  18. 


§§  71-3  REGULATIONS    AND    CUSTOMS.  121 

6  to  be  expended  upon  a  claim  before  patent  can  issue.  Sec.  5 
applies  to  all  claims  which  have  not  been  patented. x 

Work  done  on  a  tunnel. — Expenditures  in  running  a  mining 
tunnel,  before  a  lode  is  struck  therein,  were  held  not  tantamount 
to  expenditures  on  the  lode.  But  they  were  made  so  by  the 
Act  of  February  11th,  1875.  2 

Work  done  on  a  tunnel,  run  to  develop  a  particular  lode,  is 
now  considered  as  done  on  the  lode.  The  required  expendi- 
tures may  be  made  from  the  surface  or  in  running  a  tunnel  for 
the  purpose  of  developing  the  lode  or  claims.3 

§  71.  Neglect  or  refusal  of  co-claimants  to  contribute. — 

As  the  first  annual  expenditure  on  mines  located  prior  to  May 
10th,  1872,  should  have  been  made  prior  to  January  1st,  1875, 
notice  to  delinquent  co-owners  of  such  mines  could  not  be  le- 
gally given  until  after  the  latter  date. 

Clear,  full,  and  explicit  proof  should  be  presented  of  the  neg- 
lect or  refusal  of  co-claimants  to  contribute  their  proportion  of 
the  annual  expenditures  required  by  law,  and  notice  should  be 
given  to  the  co-claimants  in  the  manner  prescribed.4 

§  72.  Re-located  mines — Expenditure. — If  a  party  applies 
for  a  patent  for  a  re-located  mine,  it  will  be  necessary  for  him 
to  offer  satisfactory  proof  that  a  sum  of  not  less  than  $500  has 
been  expended  upon  the  mine  hy  the  applicant  or  his  grantors. 
The  fact  that  $500  had  been  expended  upon  the  claim  by  a  per- 
son or  persons  who  subsequently  abandoned  it,  will  not  relieve 
the  applicant  from  the  necessity  of  showing  that  he  or  his  grant- 
ors have  expended  thereon  the  amount  required  by  law.5 

§  73.  Amount  of  expenditure  shown  upon  plat  and 
field-notes  of  survey. — The  $500  expenditure  must  be  shown 
upon  the  plat  and  field-notes  of  the  classes  of  claims  men- 
tioned in  the  Mining   Statutes,  but  where  a  mill  site  is  applied 

1  Decision  Commissioner,  August  17th,  1872,  Copp's  U.  S.  Mining  Decisions,  135. 

2  Ibid.  August  ?.7th,  1872,  Ibid.  13(5. 

3  Rev.  Stat.  2324,  as  amended  ;  Letter  of  Commissioner,  March  11th,  1875  : 
June  9th,  1874  ;  1  Copp's  Land-owner,  34. 

4  Minnie  Tunnel  &  M.  Co.  In  re  Little  Fred  Mine;  Decision  of  Commissioner, 
July  19th,  1876,  3  Copp's  Land-owner,  66. 

6  Decision  of  Commissioner,  January  30th,  1875,  1  Copp's  Land-owner,  179. 


122  REGULATIONS    AND    CUSTOMS.  §  74 

for,  together  with  a  lode-claim,  the  $500  expenditure  is  only  re- 
quired to  be  upon  the  lode-claim,  not  upon  the  mill  site  also.1 

§  74.  Location  and  survey  —  Boundaries.  —  The  pro- 
vision of  Sec.  2324  Rev.  Stats.  Sec.  5,  Act  1872,  requiring 
that  the  location  must  be  so  distinctly  marked  upon  the  ground 
that  its  boundaries  may  be  readily  traced,  is  an  important 
one,  and  locators  cannot  exercise  too  much  cai*e  in  defining 
their  locations  at  the  outset,  inasmuch  as  the  law  requires  that 
all  records  of  mining  locations  made  subsequent  to  its  passage, 
shall  contain  the  name  or  names  of  the  locators,  the  date  of  the 
location,  and  such  a  description  of  the  claim  or  claims  located, 
by  reference  to  some  natural  object  or  permanent  monument, 
as  will  identify  the  claim.2  Deputies,  in  surveying  mining 
claims,-  were  frequently  in  the  habit  of  following  the  direc- 
tion of  the  parties  in  interest,  instead  of  adhering  to  the  lines 
established  in  the  original  location  of  such  claims,  and  thus,  in 
effect,  making  a  private,  instead  of  an  official  survey.  Under  all 
laws  and  regulations,  whether  local  or  general,  the  location  of  a 
claim  in  such  a  manner  as  to  give  notice  to  all  the  world  of  the 
nature  and  extent  of  the  same,  is  not  only  indispensable,  but  in 
most  cases  mining  claims  are  initiated  thereby,  and  all  subse- 
quent proceedings  are  based  upon  and  must  conform  to  such 
location.  A  failure  to  make  and  record  the  location  in  accord- 
ance with  the  law  and  regulations  in  force  at  the  date  of  the  lo- 
cation, will  defeat  the  claim,  and  if  it  is  not  made  Avith  such 
deiiaitcness  as  to  operate  as  notice  to  all  persons  seeking  to  ac- 
quire rights  to  mining  lands,  it  will  be  void  for  uncertainty.  In 
making  surveys  of  mining  claims  it  becomes,  therefore,  cssen- 
fcially  necessary  to  ascertain  the  boundaries  thereof,  as  estab- 
lished by  the  original  location,  for  the  rights  of  the  claimant  are 
limited  and  defined  by  such  boundaries.  To  make  a  survey  in 
accordance  with  other  lines  or  boundaries  is  tantamount  to 
making  a  new  location  of  the  claim,  and  the  rights  of  adjoining 
locators,  who  have,  complied  with  the  requirements  of  the  law, 
may  he  interfered  with,  and  defeated  thereby.  The  practice  of 
making  surveys  according  to  the  dictation  of  parties  in  interest, 

■  i  ( lopp's  Land-owner,  '_'. 

■i  in  tractions  June  10th,  1S72,  and  Feb.  isi,  1877,  Subdivision  12. 


§  74  REGULATIONS    AND    CUSTOMS.  123 

instead  of  in  accordance  with  the  original  location,  had  been 
productive  of  great  confusion  and  injury  to  bona  fide  claim- 
ants ] 

The  applicant  for  a  survey  is,  therefore,  now  required  to 
furnish  a  copy  of  the  original  record  of  location,  properly  cer- 
tified to  by  the  recorder  having  charge  of  the  records  of  the 
mining  locations  in  the  district  where  the  claim  is  situate,  and 
cause  all  official  surveys  of  mining  claims  to  be  made  in  strict 
conformity  to  the  lines  established  by  the  original  location  as 
recorded  ;  and  if  the  records  of  locations  made  prior  to  the  pas- 
sage of  the  Mining  Act  of  May  10th,  1872,  are  not  sufficiently 
definite  and  certain  to  enable  the  deputy  to  make  a  correct  sur- 
vey therefrom,  he  should,  after  reasonable  notice  in  writing,  to 
be  served  personally,  or  through  the  United  States  mail,  on  the 
applicant  for  survey,  and  adjoining  claimants,  whose  residence 
or  post-office  address  he  may  know  or  can  ascertain  by  the  exer- 
cise of  reasonable  diligence,  take  the  testimony  of  neighbor- 
ing claimants,  and  other  persons  who  are  familiar  with  the 
boundaries  thereof,  as  originally  located,  and  asserted  by 
the  locators  of  the  claim,  and  after  having  ascertained,  by 
such  testimony,  the  boundaries  as  originally  established,  he 
should  make  a  survey  in  accordance  therewith,  and  transmit  full 
and  correct  returns  of  survey,  accompanied  by  the  copy  of  the 
record  of  location,  the  testimony,  and  a  copy  of  the  notice  served 
on  the  claimant  and  adjoining  proprietors,  certifying  thereon, 
when,  in  what  manner,  and  on  whom  service  was  made.2 

The  provisions  of  Eev.  Stat.  2324,  (Act  of  1872,  fifth  sec- 
tion)  must  be  strictly  complied  with  in  each  case  to  entitle  the 
claimant  to  a  survey  and  patent,  and  should  a  claimant,  under 
a  location  made  subsequent  to  the  Act  of  1872,  who  has  not 
complied  with  said  requirements  in  regard  to  marking  the  loca- 
tion upon  the  ground,  and  recording  the  same,  apply  for 
a  survey,  the  local  officers  are  instructed  to  decline  to  make 
it.  The  only  relief  for  a  party,  under  such  circumstances,  will 
be  to  make  a  new  location  in  conformity  to  law  and  regulation, 
as  no  case  will  be  approved  and  patented  by  the  office  unless 
these  and  all  other  provisions  of  law  are  substantially  complied 

1  Instructions  Nov.  20th,  1873;  Copp's  U.  S.  Mining  Decisions,  319. 

2  Ibid 


124  REGULATIONS    AND    CUSTOMS.  §  75 

with.  If  the  law  has  been  complied  with  in  the  matter  of 
marking-  the  location  on  the  ground,  and  recording  the  same, 
and  any  question  arises  in  the  execution  of  the  survey,  as  to 
the  identity  of  monuments,  marks,  or  boundaries,  which  can- 
not be  determined  by  a  reference  to  the  record,  the  deputy 
should  take  testimony  in  the  manner  prescribed  for  surveys  of 
claims  located  prior  to  May  10th,  1872,  and  having  thus  ascer- 
tained the  true  and  correct  boundaries  originally  established, 
marked,  and  recorded,  make  the  survey  accordingly.1 

§  75.  Improvements,  certificates  as  to. —  In  many  in- 
stances, deputy-surveyors  certified  to  the  value  of  improvements 
without  ascertaining  whether  such  improvements  were  made  by 
the  claimant  or  his  grantors,  or  not.  No  improvements  should 
be  included  in  the  estimate  unless  they  have  been  made  by  the 
applicant  for  survey  or  by  those  from  whom  he  derives  title.2 
The  value  of  improvements  made  upon  other  locations,  or  by 
other  claimants,  should  not  be  taken  into  consideration,  but 
excluded  by  deputies  in  their  estimate  of  improvements  upon 
the  claim.  Deputies  are  required  to  certify  in  each  instance 
that  the  improvements  and  expenditures  considered  by  them 
in  their  estimate,  and  which  they  must  describe  in  their  report, 
were  made  by  the  applicant,  or  by  the  persons  from  whom  he 
derives  title.3 

1  Instructions  Nov.  20th,  1873;  Copp's  U.  S.  Mining  Decisions,  319. 

-  [bid. 

■  [bid. 

I  lie  following  certificate  will  be  attached  to  the  field-notes  of  survey  by  the 
Surveyor-General:  "J  certify  that  the  foregoing  transcript  of  the  field-notes  of 

the  survey  of  the mining  claim,  situate  in  mining  district,  county  of 

and of  ,  has  been  correctly  copied  from  the  original  notes  of  said 

survey  mi  tile  in  this  oiiicr;  that  said  lield-notes  furnish  such  an  accurate  de- 
scription  of  said  mining  claim  as  will,  if  incorporated  into  a  patent,  serve  fully 
to  identify  the  premises;  and  that  such  reference  is  made  therein  to  natural 
objects  and  permanent  monuments  as  will  perpetuate  and  fix  the /<»•».$  thereof. 

'•  I  furthi  r  certify  thai  the  value  of  the  Labor  and  improvements  upon  the  said 
milling  claim,  placed  thereon  by  the  claimant  and  his  grantors,  is  not  less  than 

five  hundred  dollars,  and  that  said  improvements  consist  of [here  describe 

the  Improvements  made  by  the  applicant  and  his  grantors  upon  the  claim].  1 
further  certify  thai  the  plat  thereof  filed  in  the  U.  S.  Land  Office  at ,  is  cor- 
rect and  in  conformity  with  the  foregoing  field-notes.  U.  S.  Surveyor-General, 
for         i         Surveyor-General's  Office."    (Date.) 

The  following  certificate  will  be  indorsed  upon  each  plat  by  the  Surveyor-! 
General:   "The  original  field-notes  of  tbe  survey  of  the  ,  from  which  this 


§  76  REGULATIONS    AND    CUSTOMS.  125 

§  76.  Fixed  monuments,  courses,  and  distances. — 
Courses  and  distances  must  give  way,  when  in  conflict  with 
fixed  objects.  Where  an  application  called  for  two  well-de- 
fined points,  the  mouth  of  a  tunnel  and  the  discovery,  and 
the  course  and  distance  given  would  not  lead  to  the  discovery, 
they  were  rejected,  as  the  call  required  a  straight  line  from  the 
mouth  of  the  tunnel  to  the  discovery.  Where  there  was, 
with  this  exception,  no  discrepancy  between  the  application 
and  final  survey,  the  application  was  allowed.1 

Where  a  party  establishes  monuments  at  the  corners  of  his 
claim  at  the  time  of  location,  and  makes  record  of  such  loca- 
tion, the  boundaries  of  his  claim  will  be  established  by  such 
monuments,.2 

plat  has  been  made,  have  been  examined  and  approved  and  are  on  file  in  this 
office,  and  I  hereby  certify  that  they  furnish  such  description  of  said min- 
ing claim  as  will,  if  incorporated  into  a  patent,  serve  fully  to  identify  the  prem- 
ises; and  that  such  reference  is  made  therein  to  natural  objects  and  permanent 
monuments  as  will  perpetuate  and  fix  the  locus  thereof. 

'"  I  further  certify  that  the  value  of  the  labor  and  improvements  upon  the  said 
mining  claim,  placed  thereon  by  the  applicant  and  his  grantors,  is  not  less  than 

five  hundred  dollars,  and  that  said  improvements  consist  of  [here  describe 

the  improvements  made  by  the  applicant  or  his  grantors  upon  the  claim].     And 

I  further  certify  that  this  is  a  correct  plat  of  said mining  claim  or  premises, 

made  in  conformity  with  said  original  field-notes  of  survey  thereof.  U.  S.  Sur- 
veyor-General, for U.  S.  Surveyor-General's  Office."     (Date.) 

1  In  re  Mammoth  Lode  ;  Decisions  of  Secretary  of  Interior  and  Assistant 
Attorney-General,  July  15th,  1873,  reversing  S.  C.  Decision  Commissioner  ; 
Copp's  U."  S.  Mining  Decisions,  211,  212. 

2  Decision  of  Commissioner.  June  13th,  187G,  3  Copp's  Land-owner,  50. 


126  PATENTS    TO    MINERAL    LANDS. 


CHAPTER  VIII. 

PATENTS   TO  MINERAL   LANDS  — MODE  OF    PROCURING  GOVERN- 
MENT TITLE. 

§    77.    Patents  for  vein  or  lode-claims,  how  obtained. 
Details  of  procedure. 
Duties  of  registers  and  receivers. 
Nature  of  the  patent. 
Impeachment  of  patent. 
Adverse  possession  as  against  a  patent. 
What  is  granted. 
Who  may  apply. 
Evidence  of    ownership  —  Deraigning    title  —  Identity  of    applicant  — 

Transfers. 
Claim  through  an  executor — Where  an  alien  is  grantee  of  a  claim. 
United  applications — Unincorporated  associations. 
Several  claims  cannot  he  embraced  in  one  application. 
Grantee  of  several  locators  may  obtain  patent  for  the  whole  tract. 
Conflicting  patents. 

Errors  in  description  in  patent — Relinquishment — Calls  for  the  relin- 
quishment of  land  inadvertently  patented. 
Second  patent — Entries  of  mineral  lands  by  settlers  and  corporations. 
Minerals  discovered  after  agricultural  patent. 
Setting  aside  patent. 
Number  of  patents. 

Protests  against  issuance  of  patents — Status  of  protestants. 
An  illegal  location  invalidates  subsequent  proceedings. 
Local  ion  by  a  minor. 
Application  for  several  lodes  and  a  mill  site — Claim  partly  in  one  dis- 

fcricl  and  partly  in  another. 
Delaying  action  al  request  of  Congressional  Committees. 
The  affidavit — Proper  party  to  make  it 
Verification  of  affidavits. 
The  Location  notice. 
Parol  evidence  to  aid  the  notice. 
Flat  must  show  the  boundaries  of  the  claim. 
Surveys  to  show  exterior  boundaries. 
Specific  surface  ground. 
I'osl  tig  on  elaiin,  ami   proof  thereof. 
Publication  of  t  he  uo1  Ice, 
Time  of  publical  Lon. 

i  lounting  the  sixty  days. 

Proof  of  publication, 

The  new   papei  In  which  t  be  notice  is  to  be  published. 

I  n  Eects  in  the  published  notice. 


§ 

78. 

§ 

79. 

§ 

SO. 

§ 

81. 

§ 

82. 

§ 

S3. 

§ 

84. 

§ 

85. 

§ 

86. 

§ 

87. 

§ 

88. 

§ 

89. 

§ 

90. 

§ 

01. 

§ 

92. 

§ 

93. 

§ 

94. 

§ 

95. 

§ 

96. 

§ 

97. 

§ 

98. 

§ 

99. 

§ 

100. 

§ 

101. 

§ 

102. 

§ 

103. 

§ 

101. 

§ 

105. 

5 

106. 

5 

107. 

5 

108. 

5 

109, 

V 

110. 

§ 

111. 

V 

112. 

s 

ii:;. 

! 

in. 

§  77  PATENTS    TO    MINERAL    LANDS.  127 

§  115.     Discrepancies  between  final  survey  and  patent,  and  the  application  and 

published  notice. 
§  116.    Discrepancies  between  the  published  notice  and  the  notice  and  diagram 

filed. 
§  117.    Discrepancies  between  the  published  notice  and  the  diagram  and  posted 

notice. 
§  US.    Discrepancies  between  the  final  survey  and  patent  and  the  application. 
§  119.    New  survey,  pending  anotlur  application. 
§  120.    Discrepancies  between  survey  and  diagram 
§  121.    Discrepancies  between  survey  and  notice,  matter  of  description. 
§  122.    Errors  in  survey. 
§  123.    "When  application  will  be  rejected. 
§  124.     Sworn  statement. 

§  125.    Approval  of  survey — Jurisdiction  of  Surveyor-General. 
§  126.     Proof  of  citizenship. 
§  127.     Miscellaneous. 

§  77.   Patents  for  vein  or  lode-claims,  how  obtained. — 

Sec.  2825  of  the  Revised  Statutes  provides  as  follows  :  l  "A 
patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner  :  Any  person,  associa- 
tion, or  corporation  authorized  to  locate  a  claim  under  this 
chapter,  having  claimed  and  located  a  piece  of  land  for  such 
purposes,  who  has,  or  have,  complied  with  the  terms  of  this 
chapter,  may  file  in  the  proper  land  office  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a 
plat  and  field-notes  of  the  claim  or  claims  in  common,  made  by 
or  under  the  direction  of  the  United  States  Surveyor-General, 
showing  accurately  the  boundaries  of  the  claim  or  claims,  which 
shall  be  distinctly  marked  by  monuments  on  the  ground,  and 
shall  post  a  copy  of  such  plat,  together  with  a  notice  of  such 
application  for  a  patent,  in  a  conspicuous  place  on  the  land  em- 
braced in  such  plat  previous  to  the  filing  of  the  application  for 
a  patent,  and  shall  file  an  affidavit  of  at  least  two  persons  that 
such  notice  has  been  duly  posted,  and  shall  file  a  copy  of  the 
notice  in  such  land  office,  and  shall  thereupon  be  entitled  to  a 
patent  for  the  land,  in  the  manner  following  :  The  register  of 
the  land  office,  upon  filing  of  such  application,  plat,  field-notes, 
notices,  and  affidavits,  shall  publish  a  notice  that  such  applica- 
tion has  been  made,  for  the  period  of  sixty  days  in  a  newspaper 
to  be  by  him  designated  as  published  nearest  to  such  claim  ; 
and  he  shall  also  post  such  notice  in  his  office  for   the  same 

i  Rev.  Stat.  2325,  Sec.  6,  Act  1872,  17  U.  S.  Stat.  92.  See  Sees.  2,  3,  Act  1866,  14 
0.  S.  Stat.  251.  See,  also,  Sees.  2325,  2327,  2328,  2333,  U.  S.  Rev.  Stats. 


128  PATENTS    TO    MINERAL    LANDS.  §  78 

period.  The  claimant,  at  the  time  of  filing  this  application,  or 
at  any  time  thereafter,  within  the  sixty  clays  of  publication, 
shall  file  with  the  register  a  certificate  of  the  United  States 
Surveyor-General  that  five  hundred  dollars  worth  of  labor  has 
been  expended  or  improvements  made  upon  the  claim  by  him- 
self or  grantors  ;  that  the  plat  is  correct,  with  such  further  de- 
scription by  such  reference  to  natural  objects  or  permanent 
monuments  as  shall  indentify  the  claim,  and  furnish  an  accurate 
description,  to  be  incorporated  in  the  patent.  At  the  expiration 
of  the  sixty  days  of  publication  the  claimant  shall  file  his  affi- 
davit, showing  that  the  plat  and  notice  have  been  posted  in  a 
conspicuous  place  on  the  claim  during  such  period  of  publica- 
tion. If  no  adverse  claim  shall  have  been  filed  with  the  regis- 
ter and  the  receiver  of  the  proper  land  office  at  the  expiration 
of  the  sixty  days  of  publication,  it  shall  be  assumed  that  the 
applicant  is  entitled  to  a  patent,  upon  the  payment  to  the  proper 
officer,  of  five  dollars  per  acre,  and  that  no  adverse  claim  ex- 
ists ;  and  thereafter  no  objection  from  third  parties  to  the  issu- 
ance of  a  patent  shall  be  heard,  except  it  be  shown  that  the 
applicant  has  failed  to  comply  with  the  terms  of  this  chapter."  1 

§  78.  Details  of  procedure. — The  claimant  is  required,  in 
the  first  place,  to  have  a  correct  survey  of  his  claim  made  under 
authority  of  the  Surveyor-General  of  the  State  or  Territory  in 
which  the  claim  lies  ;  such  survey  to  show  with  accuracy  the  ex- 
terior surface  boundaries  of  the  claim,  which  boundaries  are 
required  to  be  distinctly  marked  by  monuments  on  the  ground.2 
Four  plats  and  one  copy  of  the  original  field-notes,  in  each 
case,  will  be  prepared  by  the  Surveyor-General :  one  plat  and 
the  original  field-notes  to  be  retained  in  the  office  of  the  Survey. 
or-Gcncral ;  one  copy  of  the  plat  to  be  given  the  claimant  for 
posting  upon  the  claim  ;  one  plat  and  a  copy  of  the  field-notes 
to  be  given  the  claimant  for  filing  with  the  proper  register,  to 
lif  finally  transmitted  by  that  officer,  with  the  other  papers  in 
the  case,  to  the  General  Land  Office;  and  one  plat  to  be  sent  by 

i  Section  6  of  the  A.-t,  of  May  20th,  1872,  17  U.  S.  Stats.  92,  was  identical  with 
this  section.     For  the  corresponding  repealed  sections  of  the  Act  of  lSGfi,  see 

A  Ote,   Sees.    1,    II. 

3  Instructions  June  10th,  1872,  Subdivision  28;  Report  of  Commissioner  of  the 
I ;.  aeral  Land  Office,  1872,  p.  44  ;  [nstructions  February  1st,  1877,  Subdivision  28. 


§  78  PATENTS   TO    MINERAL    LANDS.  129 

the  Surveyor-General  to  the  register  of  the  proper  land  district, 
to  be  retained  on  his  files  for  future  reference.  The  claimant 
is  then  required  to  post  a  copy  of  the  plat  of  such  survey  in 
a  conspicuous  place  upon  the  claim,  together  with  notice  of 
his  intention  to  apply  for  a  patent  therefor,  which  notice 
will  give  the  date  of  posting,  the  name  of  the  claimant,  the 
name  of  the  claim,  mine,  or  lode ;  the  mining  district  and 
county  ;  whether  the  location  is  of  record,  and  if  so,  where  the 
record  may  be  found ;  the  number  of  feet  claimed  along  the 
vein,  and  the  presumed  direction  thereof  ;  the  number  of  feet 
claimed  on  the  lode  in  each  direction  from  the  point  of  discovery, 
or  other  well-defined  place  on  the  claim  ;  the  name  or  names  of 
adjoining  claimants  on  the  same  or  other  lodes ;  or  if  none  ad- 
join, the  names  of  the  nearest  claims.1 

After  posting  the  said  plat  and  notice  upon  the  premises,  the 
claimant  will  file,  with  the  proper  register  and  receiver,  a  copy  of 
such  plat,  and  the  field-notes  of  survey  of  the  claim,  accompanied 
by  the  affidavit  of  at  least  two-  credible  witnesses,  that  such 
plat  and  notice  are  posted  conspicuously  upon  the  claim,  giving 
the  date  and  place  of  such  posting,  a  copy  of  the  notice  so 
posted  to  be  attached  to,  and  form  a  part  of,  said  affidavit.2 
Attached  to  the  field-notes  so  filed,  must  be  the  sworn  statement 
of  the  claimant,  that  he  has  the  possessory  right  to  the  premises 
therein  described,  in  virtue  of  a  compliance  by  himself,  (and  by 
his  grantors,  if  he  claims  by  purchase)  with  the  mining  rules, 
regulations,  and  customs  of  the  mining  district,  State,  or  Terri- 
tory in  which  the  claim  lies,  and  with  the  mining  laws  of  Con- 
gress ;  such  sworn  statement  to  narrate  briefly,  but  as  clearly 
as  possible,  the  facts  constituting  such  compliance,  the  origin  of 
his  possession,  and  the  basis  of  his  claim  to  a  patent.3 

The  affidavit  should  be  supported  by  appropriate  evidence, 
from  the  mining  recorder's  office,  as  to  his  possessory  right 
as  follows,  viz :  Where  he  claims  to  be  a  locator,  a  full, 
true,    and   correct  copy  of  such  location  should  be  furnished, 

1  Instructions  June  10th,  1S72,  Subdivision  29;  Report  of  Commissioner  of  the 
General  Land  Office,  1872,  p.  44 ;    Instructions  February  1st,  1877,  Subdivision  29. 

2  Ibid.  Subdivision  30;  Ibid.  Subdivision  30. 
8  Ibid.  Subdivision  31;  Ibid.  Subdivision  31. 

W.  C— 9. 


130  PATENTS  TO  MINERAL  LANDS.  §  78 

as  the  same  appears  upon  the  mining  records  ;  such  copy 
to  be  attested  by  the  seal  of  the  recorder,  or  if  he  has 
no  seal,  then  he  should  make  oath  to  the  same  being  correct, 
as  shown  by  his  records  ;  where  the  applicant  claims  as  a  loca- 
tor in  company  with  others,  who  have  since  conveyed  their 
interests  in  the  lode  to  .him,  a  copy  of  the  original  record  of 
location  should  be  filed,  together  with  an  abstract  of  title  from 
the  proper  recorder,  under  seal  or  oath,  tracing  the  co-locator's 
possessory  rights  in  the  claim  to  such  applicant  for  patent ; 
where  the  applicant  claims  only  as  a  purchaser  for  valuable 
consideration,  a  copy  of  the  location  record  must  be  filed,  under 
seal  or  upon  oath,  with  an  abstract  of  title  certified  as  above  by 
the  proper  recorder,  tracing  the  right  of  possession  by  a  con- 
tinuous chain  of  conveyances  from  the  original  locators  to  the 
applicant.1 

In  the  event  of  the  mining  records  in  any  case  having  been 
destroyed  by  fire,  or  otherwise  lost,  affidavit  of  the  fact  should 
be  made,  and  secondary  evidence  of  possessory  title  will  be  re- 
ceived, which  may  consist  of  the  affidavit  of  the  claimant,  sup- 
ported by  those  of  any  other  parties  cognizant  of  the  facts  rel- 
ative to  his  location,  occupancy,  possession,  improvements,  etc., 
and  in  such  case  of  lost  records,  any  deeds,  certificates  of 
location  or  purchase,  or  other  evidence  which  may  be  in  the 
claimant's  possession  and  tend  to  establish  his  claim,  should  be 
filed.2 

Upon  the  receipt  of  these  papers,  the  register  will,  at  the 
expense  of  the  claimant,  publish  a  notice  of  such  application 
for  the  period  of  sixty  days,  in  a  newspaper  published  nearest 
to  the  claim,  and  will  post  a  copy  of  such  notice  in  his  office 
for  tlio  same  period.  In  all  cases,  sixty  days  must  intervene 
between  the  first  and  the  last  insertion  of  the  notice  in  such 
newspaper.  The  notices  so  published  and  posted  must  be  as 
full  and  complete  as  possible,  and  embrace  all  the  data  given 
in  the  notice  posted  upon  the  claim.  Great  care  should  be  cx- 
ercised  in  the  preparation  of  these  notices,  inasmuch   as  upon 

i  Instructions  June  10th,  1872,  Subdivision  .".2;  Report  of  Commissioner  of  tlio 

General  I d  Office,  L872,  p.  44;  Instructions  February  1st,  1877,  Subdivision  32. 

-  [bid.  Subdivision  33:  I  hid.  Subdivisions  32-36. 


§   78  PATENTS    TO    MINERAL    LANDS.  131 

their  accuracy  and  completeness  will  depend,  in  a  great  measure, 
the  regularity  and  validity  of  the  whole  proceedings.1 

The  claimant,  either  at  the  time  of  filing  these  papers  with  the 
register,  or  at  any  time  during  the  sixty  days'  publication,  is  re- 
quired to  file  a  certificate  of  the  Surveyor-General,  that  not  less 
than  $500  worth  of  labor  has  been  expended  or  improvements 
made  upon  the  claim  by  the  applicant  or  his  grantors  ;  that  the 
plat  filed  by  the  claimant  is  correct;  that  the  field-notes  of  the 
survey,  as  filed,  furnish  such  an  accurate  description  of  the  claim 
as  will,  if  incorporated  into  a  patent,  serve  to  fully  identify  the 
premises,  and  that  such  reference  is  made  therein  to  natural 
objects  or  permanent  monuments  as  will  perpetuate  and  fix  the 
locus  thereof.2 

It  is  the  more  convenient  way  to  have  this  certificate  indorsed 
by  the  Surveyor-General,  both  upon  the  plat  and  field-notes  of 
survey  filed  by  the  claimant.3 

After  the  sixty-days  period  of  newspaper  publication  has 
expired,  the  claimant  must  file  his  affidavit,  showing  that  the 
plat  and  notice  remained  conspicuously  posted  upon  the  claim 
sought  to  be  patented  during  said  sixty  days  of  publication. 
Upon  the  filing  of  this  affidavit,  the  register  will,  if  no  adverse 
claim  was  filed  in  his  office  during  the  period  of  publication, 
permit  the  claimant  to  pay  for  the  land  according  to  the  area 
given  in  the  plat  and  field-notes  of  survey,  at  the  rate  of  five 
dollars  for  each  acre  and  five  dollars  for  each  fractional  part  of 
an  acre,  the  receiver  issuing  the  usual  duplicate  receipt  therefor, 
after  which  the  whole  matter  will  be  forwarded  to  the  Commis- 
sioner of  the  General  Land  Office,  and  a  patent  issued  thereon  if 
found  regular.4 

When  a  duplicate  receipt  for  a  mineral  entry  has  been  lost,  a 
patent  may  be  transmitted  upon  affidavit  of  a  secretary  under 
the  corporate  seal  of  the  company,  that  he  is  the  duly  elected 
secretary  of  the  company,  and  authorized  to  receive  a  patent ; 
that  the  party  had  the  receipt  in  possession;  that  it  has  been 

1  Instructions  June  10th,  1872,  Subdivisions  34, 35,  36;  Report  of  Commissioner 
of  the  General  Land  Office,  1S72,  p.  44;  Instructions  February  1st,  Subdivi- 
sions 32-3(i. 

2  Roid.  Subdivision  37;  Instructions  February  1st,  1877,  Subdivisions  35-43. 

3  Ibid.  Subdivision  38;  Ibid. 

4  Ibid.  Subdivisions  39-40;  Ibid. 


132  PATENTS    TO    MINERAL    LANDS.  §  79 

lost,  and  that  up  to  the  time  of  making  the  affidavit,  after  care- 
ful and  diligent  search,  he  had  been  unable  to  find  it.  This 
affidavit  is  to  be  taken  before  an  officer  duly  authorized  to  ad- 
minister oaths,  and  attested  by  his  seal,  and  the  same  filed.1 

In  sending  up  the  papers  in  the  case,  the  register  must  not 
omit  certifying  to  the  fact  that  the  notice  was  posted  in  his 
office  for  the  full  period  of  sixty  days,  the  certificate  to  state 
distinctly  when  such  posting  was  done  and  how  long  continued. 
The  consecutive  series  of  numbers  of  mineral  entries  must  be 
continued,  whether  the  same  are  of  lode  or  placer  claims.  The 
Surveyor-General  must  continue  to  designate  all  surveyed  min- 
eral claims  as  heretofore,  by  a  progressive  series  of  numbers, 
beginning  with  lot  No.  37  in  each  township,  the  claim  to  be  so 
designated  at  date  of  filing  the  plat,  field-notes,  etc.,  in  addition 
to  the  local  designation  of  the  claim ;  it  being  required  in  all 
cases  that  the  plat  and  field-notes  of  the  survey  of  a  claim  must, 
in  addition  to  the  reference  to  permanent  objects  in  the  neigh- 
borhood, describe  the  locus  of  the  claim  with  reference  to  the 
lines  of  public  surveys  by  a  line  connecting  a  corner  of  the 
claim  with  the  nearest  public  corner  of  the  United  States  sur- 
veys, unless  such  claim  be  on  unsurveyed  lands  at  a  remote  dis- 
tance from  such  public  corner ;  in  which  latter  case  the  refer- 
ence by  course  and  distance  to  permanent  objects  in  the  neigh- 
borhood will  be  a  sufficient  designation  by  which  to  fix  the  locus 
until  the  public  surveys  shall  have  been  closed  upon  its  boun- 
daries.3 

§  79.  Duties  of  registers  and  receivers. — On  receiving 
applications  for  mining  patents,  registers  and  receivers  are  re- 
quired to  ascertain  from  the  claimants  whether  they  claim  the 
right  of  possession  under  the  local  customs  or  rules  of  miners, 
as  the  same  existed  in  the  district  prior  to  the  adoption  of  local 
legislative  regulations,  and  if  so,  require  satisfactory  proof  that 
the  claim  is  occupied  in  accordance  with  such  customs  or  rules, 

1  In  ce  Cascade  Silver  Mining  Co.  Decision  of  Commissioner,  April  18th,  1870, 
Copp'fl  i'.  s.  Mining  Decisions,  30. 

-  [nstructions  June  10th,  L872,  Subdivisions  41,  12,  ■{'■'•;  Report,  of  Commissioner 
•  ■  General  Land  Office.  1872,  p.  44;  Instructions  February  1st,  1877,  Subdivi- 
sions 30   l  ;- 


§  80  PATENTS    TO    MINERAL    LANDS.  133 

certified  copies  of  the  regulations  in  force  at  the  date  of  loca- 
tion to  be  transmitted  with  the  case. 

To  ascertain  whether  the  application  is  for  a  claim  located  in 
pursuance  of  local  legislative  regulations,  and  if  so,  require  sat- 
isfactory proof  that  the  claimants  have,  in  making  their  loca- 
tions, complied  with  such  regulations.  If  the  claimants  desire 
patent  for  a  claim  located  in  accordance  with  the  Act  of  Con- 
gress, approved  July  26th,  1866,  the  officers  are  to  observe  that 
the  location  does  not  exceed  200  feet  on  the  course  of  the  vein 
or  lode  for  each  person  who  is  a  party  to  such  location,  with  200 
additional  feet  for  the  discoverer,  or  3,000  feet  for  any  associa- 
tion of  persons,  which  3,000  feet  can  only  be  taken  at  the  rate 
of  200  feet  to  each  individual  comprising  such  association,  200 
additional  feet  being  allowed  the  discoverer.  By  which  it  will 
be  perceived  that  to  locate  3,000  feet  on  any  vein  or  lode  under 
the  Act  of  1866  required  not  less  than  fourteen  persons  where 
one  was  the  discoverer,  or  fifteen  persons  if  taken  without  ref- 
erence to  the  discovery  claim. 

If  the  application  be  for  a  mine  located  since  May  10th,  1872, 
the  maximum  along  a  vein  or  lode  that  can  be  located  by  one  per- 
son or  several  persons  is  1,500  feet,  and  300  feet  on  each  side  of 
the  center  of  the  vein  at  the  surface  is  the  greatest  width  of  sur- 
face ground  permitted  under  the  Mining  Act  of  May  10th, 
1872.1 

§  80.  Nature  of  the  patent. — The  patent  is  evidence  of 
the  series  of  proceedings  recited  in  it ;  it  is  the  deed  of  the 
United  States,  and  is  a  solemn  record  of  the  Government,  of 
its  action  and  judgment  with  respect  to  the  title  of  the  claim- 
ants. As  such,  it  imports  absolute  verity.  Both  the  officers  of 
the  Government  and  the  grantee,  as  well  as  those  in  privity  with 
him,  are  bound  by  the  recital  of  facts  contained  in  it.  But  it 
has  been  held,  in  California,  that  neither  the  President  nor  any 
officer  has  other  power  to  dispose  of  the  public  domain,  or  to 
sign  or  cause  the  seal  of  the  Land  Office  to  be  affixed  to  pat- 
ents, than  such  as  is  conferred  by  statutes  of  the  United  States. 
That  while  the  recitals  of  fact  are  binding  on  all  concerned,  an 

1  In  re  San  Xavier  Mine,  Decision  Commissioner,  July  10th,  1873,  Copp's  U. 
S.  Mining  Decisions,  209. 


134  PATENTS    TO    MINERAL    LANDS.  §  81 

opinion  of  the  executive  officers  in  respect  to  matters  of  law,  as 
indicated  either  by  the  ultimate  act  of  issuing  the  patent  or  by 
recitals  inserted  in  the  instrument,  is  not  conclusive,  and  a  pat- 
ent issued  without  legal  authority  is  void.1 

§  81.  Impeachment  of  a  patent. — A  United  States  patent 
is  conclusive  evidence  in  an  action  at  law  of  the  nature  of  the 
land  conveyed.  Where  it  is  the  duty  of  executive  officers  (as, 
for  instance,  the  Secretary  of  the  Interior)  to  identify  lands  and 
make  lists,  and  issue  patents  for  them,  a  patent  so  issued  cannot 
be  impeached  at  law,  by  extrinsic  proof  showing  that  the  land 
which  it  conveys  is  not  in  fact  what  the  patent  states  it  to  be. 
The  subject  is  important,  and  a  late  enunciation  of  the  doctrine 
maintained  by  the  highest  judicial  tribunal  of  the  country  upon 
a  subject  peculiarly  within  its  province,  is  to  be  found  in  the  case 
of  French  v.  Fyan,  in  the  Supreme  Court  of  the  United  States.2 

The  subject-matter  was  a  swamp-land  grant,  but  it  is  pre- 
sumed that  the  principles  set  forth  are  of  general  application, 
and  that  they  will  not  be  materially  changed. 

The  action  was  ejectment,  and  the  single  question  raised  was 
on  the  refusal  of  the  lower  Court  to  receive  oral  testimony 
to  impeach  the  validity  of  a  patent  isued  by  the  United  States 
to  the  State  of  Missouri  for  the  land  in  question,  under  the 
Act  of  1850,  known  as  the  swamp-land  grant,  the  purpose  be- 
ing to  show  by  such  testimony  that  it  was  not,  in  point  of  fact, 
swamp-land  within  the  meaning  of  that  act. 

The  bill  of  exceptions  showed  that  the  land  was  certified, 
in  March,  1854,  to  the  Missouri  Pacific  Railroad  Company,  as 
part  of  the  land  granted  to  aid  in  the  construction  of  said  road 
by  the  Act  of  June  10th,  1852,  and  the  plaintiff,  by  purchase 
made  in  1872,  became  vested  with  such  title  as  this  certificate 
gave. 

To  overcome  this  prima  facie  case,  defendant  gave  in  evidence 
l  Ik-  patenl  issued  to  Missouri,  in  1857,  under  the  Swamp-land 
A.ct,  and  it  was  admitted  that  defendant  had  a  regular  chain  of 
title  under  this  patent. 

1  McGarraharj  v.  New  [dria  M.  <'<>.  49Cal.  335;  Teschemacher  v.  Thompson,  18 
<        1 1     Parket  v.  Duff,  IT  OaL  554;  Koscalinau.  Doj'lc,  47  Cat.  437. 
-  No.  43,  <  >Ct.  1    l  i76   3  C.  I>.  <>.  L34j  to  bo  reported  in  about  the  93d  or  94th  U. 

s.  U.  :;.!  mi-  Mi  on... 


§  81  PATENTS    TO    MINERAL    LANDS.  135 

It  was  at  this  stage  of  the  proceedings  that  "  the  plaintiff 
offered  to  prove,  in  rebuttal,  by  witnesses  who  had  known  the 
character  of  the  land  in  dispute  since  1849  till  the  time  of  trial, 
that  the  land  in  dispute  was  not  swamp  and  overflowed  land, 
made  unfit  thereby  for  cultivation,  and  that  the  greater  part 
thereof  is  not  and  never  has  been,  since  1849,  wet  and  unfit  for 
cultivation. 

"  But  the  Court  ruled  that  since  the  defendant  had  introduced 
a  patent  from  the  United  States  to  the  State  for  the  said  land 
under  the  Act  of  September  28th,  1850,  as  swamp  land,  this 
concluded  the  question,  and  the  Court,  therefore,  rejected  said 
parol  testimony  ;  to  which  ruling  of  the  Court  the  plaintiff  then 
and  there  excepted." 

Mr.  Justice  Miller,  delivering  the  opinion  of  the  Court,  said : 
u  This  Court  has  decided  more  than  once  that  the  Swamp-land 
Act  was  a  grant  in  prcesenti,  by  which  the  title  to  those  lands 
passed  at  once  to  the  State  in  which  they  lay,  except  as  to 
States  admitted  to  the  Union  after  its  passage.  The  patent, 
therefore,  which  is  the  evidence  that  the  lands  contained  in  it 
had  been  identified  as  swamp-lands  under  that  act,  relates  back 
and  gives  certainty  to  the  title  as  of  the  date  of  the  grant.  As 
that  act  was  passed  two  years  prior  to  the  act  granting  lands  to 
the  State  of  Missouri  for  the  benefit  of  the  railroad,  the  de- 
fendant had  the  better  title  on  the  face  of  the  papers,  notwith- 
standing the  certificate  to  the  railroad  company  for  the  same 
land  was  issued  three  years  before  the  patent  to  the  State  under 
the  Act  of  1850.  For  while  the  title  under  the  Swamp-land  Act, 
being  a  present  grant,  takes  effect  as  of  the  date  of  that  act, 
or  of  the  admission  of  the  State  into  the  Union,  when  this  oc- 
curred afterward,  there  can  be  no  claim  of  an  earlier  date  than 
that  of  the  Act  of  1852,  two  years  later,  for  the  inception  of 
title  of  the  railroad  company. 

"The  only  cpacstion  that  remains  to  be  considered  is  whether, 
in  an  action  at  law  in  which  these  evidences  of  title  come  in 
conflict,  parol  testimony  can  be  received  to  show  that  the  land 
in  controversy  was  never  swamp-land,  and,  therefore,  the  patent 
issued  to  the  State  under  that  act  is  void. 

"  The  second  section  of  the  Swamp-land  Act  declares,  '  that 
it  shall  be  the  duty  of  the  Secretary  of  the  Interior,  as  soon  as 


136  PATENTS   TO   MINERAL   LANDS.  §  81 

practicable  after  the  passage  of  this  act,  to  make  out  an  accu- 
rate list  and  plats  of  the  land  described  as  aforesaid,  and  trans- 
rait  the  same  to  the  governor  of  the  State,  and,  at  the  request 
of  the  governor,  cause  a  patent  to  be  issued  to  the  State  therefor, 
and  on  that  patent  the  fee-simple  to  said  lands  shall  vest  in  said 
State,  subject  to  the  disposal  of  the  legislature  thereof.'  It  was 
under  the  power  conferred  by  this  section  that  the  patent  was 
issued  under  which  defendant  holds  the  land.  We  are  of  opin- 
ion that  this  section  devolved  upon  the  Secretary,  as  the  head  of 
the  department  which  administered  the  affairs  of  the  public 
lands,  the  duty,  and  conferred  on  him  the  power  of  determin- 
ing what  lands  were  of  the  description  granted  by  that  act, 
and  made  his  office  the  tribunal  whose  decision  on  that  subject 
was  to  be  controlling. 

"  We  have  so  often  commented  in  this  Court  on  the  conclu- 
sive nature  and  effect  of  such  a  decision  when  made  and  evi- 
denced by  the  issuance  of  a  patent,  than  we  can  do  no  better 
than  to  repeat  what  was  said  in  the  case  of  Johnson  v.  Towsley, 
13  Wall.  72,  where  the  whole  question  was  reviewed  both  on 
principle  and  authority.  In  that  case  it  had  been  strongly 
argued  that  the  specific  language  of  one  of  the  statutes  concern- 
ing pre-emption  on  the  public  lands,  made  the  decision  of  the 
Commissioner  of  the  General  Land  Office  conclusive  every- 
where and  under  all  circumstances.  The  Court  responded  to 
this  argument  in  this  language  :  '  But  while  we  find  no  support  to 
the  proposition  of  the  counsel  for  plaintiffs  in  error  in  the  special 
provisions  of  the  statute  relied  on,  it  is  not  to  be  denied  that 
the  argument  is  much  stronger  when  founded  on  the  general 
doctrine  that  when  the  law  has  confided  to  a  special  tribunal 
the  authority  to  hear  and  determine  certain  matters  arising  in 
the  course  of  its  duties,  the  decision  of  that  tribunal,  within  the 
scope  of  its  authority,  is  conclusive  upon  all  others.  That  the 
action  of  the  Land  Office  in  issuing  a  patent  for  any  of  the  public 
land,  .  ubjecl  to  sale  by  pre-emption  or  otherwise,  is  conclusive 
of  the  legal  title,  must  be  admitted  under  the  principle  above 
Stated  ;  and  in  all  Courts,  and  in  all  forms  of  judicial  proceed- 
in"-  where  this  title  nni-t  control,  either  by  reason  of  the  lim- 
ited  |io\ver-  of  the  Court  or  the  essential  character  of  the  pro-, 
ceedings,  no  inquiry  can    be  permitted  into  tin;  circumstances 


§  81  PATENTS    TO    MINERAL    LANDS.  137 

under  which  it  was  obtained.  On  the  other  hand,  there  has 
always  existed  in  the  Courts  of  Equity  the  power  in  certain 
classes  of  cases  to  inquire  into  and  correct  mistakes,  injustice, 
and  wrong  in  both  judicial  and  executive  action,  however  sol- 
emn the  form  which  the  result  of  that  action  may  assume,  when 
it  invades  private  rights ;  and  by  virtue  of  this  power  the  final 
judgments  of  Courts  of  Law  have  been  annulled  or  modified, 
and  patents,  and  other  important  instruments  issuing  from  the 
crown  or  other  executive  branch  of  the  government,  have  been 
corrected,  or  declared  void,  or  other  relief  granted.' 

"  We  see  nothing  in  the  case  before  us  to  take  it  out  of  the 
operation  of  that  rule,  and  we  are  of  opinion  that,  in  this 
action  at  law,  it  would  be  a  departure  from  sound  principle,  and 
contrary  to  well-considered  judgments  in  this  Court  and  in 
others  of  high  authority,  to  permit  the  validity  of  the  patent  to 
the  State  to  be  subjected  to  the  test  of  the  verdict  of  a  jury  on 
such  oral  testimony  as  might  be  brought  before  it.  It  would 
be  substituting  the  jury,  or  the  Court  sitting  as  a  jury,  for  the 
tribunal  which  Congress  had  provided  to  determine  the  question, 
and  would  be  making  a  patent  of  the  United  States  a  cheap  and 
unstable  reliance  as  a  title  for  lands  which  it  purported  to 
convey. 

"  The  learned  judge  of  this  Court  who  presidesin  the  Califor- 
nia Circuit,  has  called  our  attention  to  a  series  of  decisions  of 
the  Supreme  Court  of  that  State  in  regard  to  this  swamp-land 
grant,  commencing  with  27  Cal.  87,1  in  which  a  different  doc- 
trine is  announced.  But  with  all  the  respect  we  have  for  that 
learned  Court,  we  are  unable  to  concur  in  the  views  therein  ex- 
pressed. The  principle  we  have  laid  down  is  in  harmony  with 
the  system  which  governs  the  relations  of  the  Courts  to  the  offi- 
cers of  the  executive  departments ;  especially  those  having 
charge  of  the  public  lands,  as  we  have  repeatedly  decided,  and 
we  must  abide  by  them. 

"  We  do  not  mean  to  affirm  that  there  is  anything  in  the  case 
before  us„  as  it  is  here  presented,  which  would  justify  a  resort 
to  a  Court  of  Chancery ;  we  merely  mean  to  express  our  con- 
viction that  the  only  mode  by  which  the  conclusive  effect  of  the 

1  Kernan  v.  Griffith. 


138  PATENTS    TO    MINERAL    LANDS.  §  82 

patent  in  this  case  can  be  avoided,  if  it  can  be  done  at  all,  is  by 
a  resort  to  the  equitable  jurisdiction  of  the  Courts. 

"  The  case  of  the  Railroad  Company  v.  Smith,  9  Wall.  45,  is 
relied  on  as  justifying  the  offer  of  parol  testimony  in  the  one 
before  us.  In  that  case  it  was  held  that  parol  evidence  was 
competent  to  prove  that  a  particular  piece  of  land  was  swamp 
land,  within  the  meaning  of  the  act  of  Congress. 

"  But  a  careful  examination  will  show  that  it  was  done  with 
hesitation,  and  with  some  dissent  in  the  Court.  The  admission 
was  placed  expressly  on  the  ground  that  the  Secretary  of  the 
Interior  had  neglected  or  refused  to  do  his  duty ;  had  made  no 
selection  or  lists  whatever,  and  would  issue  no  patents,  although 
many  years  had  elapsed  since  the  passage  of  the  act.  There 
was  no  means,  as  this  Court  has  decided,  to  compel  him  to  do 
so,  and  if  the  party  claiming  under  the  State  in  that  case  could  not 
be  permitted  to  prove  that  the  land  which  the  State  had  con- 
veyed to  him  as  swamp  lands  was  in  fact  such,  a  total  failure  of 
justice  would  occur,  and  the  entire  grant  to  the  State  might  be 
defeated  by  this  neglect  or  refusal  of  the  Secretary  to  perform 
his  duty.  (Gaines  v.  Thompson,  7  Wall.  347 ;  Secretary  v. 
McGarrahan,  9  Wall.  298 ;  Litchfield  v.  The  Register  and  Re- 
ceiver, 9  Wall.  575.)  The  Court  said  in  that  case  :  "  The  mat- 
ter to  be  shown  is  one  of  observation  and  examination  ;  and 
whether  arising  before  the  Secretary,  whose  duty  it  Avas  primar- 
ily to  decide  it,  or  before  the  Court  whose  duty  it  became,  be- 
cause the  Secretary  had  failed  to  do  it,  this  was  clearly  the  best 
evidence  to  be  had,  and  was  sufficient  for  the  purpose." 

"  There  is  in  this  no  conflict  with  what  wc  decide  in  the  pres- 
ent case,  but,  on  the  contrary,  the  strongest  implication  that  if, 
in  that  case,  the  Secretary  had  made  any  decision,  the  evidence 
would  have  been  excluded."  The  judgment  of  the  Circuit 
Court  was  affirmed.1 

§  82.  Adverse  occupation  as  against  a  patent. — A  pat- 
ent ie  tin  instrument  which,  under  the  laws  of  Congress,  passes 
i he  title  of  the  United  States.     It  is  the  Government  convey- 

|  See,  also,  Gaines  v.  Thompson,  7  "Wall.  352;  Kendall  >•.  U.S.  12  Pet.  G18;  Comr. 
v.  Whlteley,  t  Wall.  522;  Becside  v.  Walker,  it  Bow.  272;  U.  S.  v.  Guthrie,  17 
Wall.  284;  Decatur  v.  Paulding,  it  Pot.  ■IT1.);  Uraslmar  v.  Mason,  rt  How.  92;  U. 
S   i    Cninr.  •"-  Wal!..".ii.l;  ('.  S.  r.  Seaman,  17  How.  230. 


§   83  PATENTS    TO    MINERAL    LANDS.  139 

ance.  If  other  parties  possess  equities  superior  to  those  of  the 
patentee,  upon  which  the  patent  issued,  a  Court  of  Equity  will, 
upon  proper  proceedings,  enforce  such  equities,  by  compelling 
a  transfer  of  the  legal  title,  or  enjoining  its  enforcement,  or  can- 
celing the  patent.  But,  in  an  action  of  ejectment,  the  legal 
title  must  prevail  in  all  the  Federal  Courts ;  and  a  patent,  when 
regular  on  its  face,  is  conclusive  evidence  of  that  title.  So, 
also,  in  the  action  of  ejectment  in  the  State  Courts,  when  the 
question  presented  is  whether  the  plaintiff  or  the  defendant 
has  the  superior  legal  title  from  the  United  States,  the  patent 
must  prevail.  Neither  in  a  separate  suit  in  a  Federal  Court, 
nor  in  an  answer  to  an  action  of  ejectment  in  the  State  Courts, 
can  mere  occupation  of  the  demanded  premises  by  either  party 
for  the  period  prescribed  by  the  Statute  of  Limitations  of  the 
State,  be  held  to  constitute  a  sufficient  equity  in  their  favor  to 
control  the  legal  title  subsequently  conveyed  to  others  by  the 
patent  of  the  United  States.  The  power  of  the  United  States 
to  dispose  of  its  public  lands  cannot  be  defeated  nor  obstructed 
by  any  occupation  of  the  premises  before  the  issue  of  the  pat- 
ent, under  State  legislation,  in  whatever  form  of  tribunal  such 
occupation  be  asserted.1 

§  83.  The  patent,  what  is  granted. — What  is  granted  by 
the  United  States  to  the  patentee  of  a  vein  or  lode-claim  may 
be  thus  stated :  A  patent  granted  for  a  mining  claim  under  the 
Act  of  1866,  by  the  express  provision  of  the  act,  conveyed  to  the 
grantee  thererein  named  the  surface  ground  embraced  within 
the  exterior  boundaries  of  the  survey,  and  the  particular  lode 
named  in  the  patent  for  the  number  of  feet  patented  along  the 
course  thereof,  with  all  its  dips,  angles,  and  variations,  although 
it  might  depart  from  the  surface  ground  described  in  the  survey 
and  enter  the  land  adjoining* 

Where  the  application  for  patent  was  pending  under  the  Act 
of  1866,  on  the  10th  day  of  May,  1872,  none  of  the  rights  which 

1  Gibson  v.  Chouteau,  13  Wall.  U.  S.  92,  reversing  S.  C.  39  Mo.  588;  Wilcox  v. 
Jackson,  13  Pet.  51G;  Irvine  v.  Marshall,  20  How.  IT.  S.  558;  Fen  v.  Holme,  21 
How.  U.  S.  481;  Lindsey  v.  Miller,  G  Pet.  672;  Stephenson  v.  Smith,  7  Mo.  610; 
Barry  v.  Gamble,  8  Id.  881;  Cunningham  v.  Ashley,  14  How.  377;  Lindsey  v. 
Hawes,  2  Black.  551;  Stark  v.  Starrs,  6  Wall.  402;  Johnson  v.  Towsley,  13  Wall. 
72;  Bagnell  v.  Broderick,  13  Pet.  450. 


140  PATENTS    TO    MINERAL    LANDS.  §§  84-5 

the  applicant  had  acquired  by  virtue  of  compliance  with  the 
Act  of  1866  were  in  any  way  affected  or  impaired,  and  patents 
issued  upon  such  applications  conveyed  the  same  rights  which 
were  conveyed  under  the  Act  of  1866,  together  with  all  other 
veins  or  lodes,  the  tops  or  apexes  of  which  lie  inside  the  exterior 
boundaries  of  the  surface  ground  patented,  to  the  extent  and 
in  the  manner  provided  by  the  third  section  of  the  Act  of  1872.1 

§  84.  Who  may  apply. — The  real  owners  of  the  mine, 
having  also  the  possessory  title  to  the  lode,  are  the  persons  to 
whom  it  is  proper  to  deliver  the  patent,  notwithstanding  that 
they  may  not  be  parties  named  in  it  as  it  was  originally  made 
out.2 

Joint  owners  must  jointly  apply.  Where  several  parties  own 
undivided  interests  in  a  mining  claim,  all  the  owners  must  join 
in  an  application ;  and  where  several  parties  own  separate  and 
distinct  portions  of  a  claim,  application  for  a  patent  may  be 
made  by  either  for  the  portion  he  desires.3 

A  patent  may  issue  to  an  assignee  of  the  applicant.  In  such 
case  it  is  necessary  for  the  party  to  file  in  the  commissioner's 
office  the  duplicate  receiver's  receipt,  with  an  indorsement  there- 
on of  the  applicants,  of  all  right,  title,  and  interest  in  the  lodes.4 

Patented  ground  is  subject  to  entry  by  adjoining  proprietors 
where  the  patent  provides  that  the  premises  conveyed  are  sub- 
ject to  be  entered  by  any  adjoining  proprietors  of  a  vein  or  lode 
of  gold,  silver,  cinnabar,  or  copper,  in  exploring  or  operating 
such  vein  or  lode.5 

§  85.  Evidence  of  ownership — Deraigning  title — Iden- 
tity of  applicant — Transfers.— Patents  for  mining  claims  arc 

1  In  re  Hercules  Lode  and  Seven-Thirty  Lode,  Decision  Commissioner,  August 
17th,  is;?,  I  ( 'ojip's  Laiiil-owiK •!■.  s.i;  i  >ccision  Commissioner,  i  December 26th,  1872, 
Copp's  U.S.  .Mining  Decisions,  L54;  Rev.  Sts.  U.  8.  2322. 

-In  re  Chicago  and  Clear  Creek  G-.&  S.  M.  di.  Decision  Acting  Commissioner, 
.April  nil,  1872,  Copp's  U.  S.  Mining  Decisions,  85. 

i]  oi  "N  of  Commissioner,  February  18th,  1873,  Copp's  ('.  8.  Alining  De- 
159. 

•!,,.■    Lonof  Commisioncr,  Ort.  '.M,  1K72;    In  re  Vespasian    Lode,    Copp's  U.  S. 

Mining  I  >eci  Ion  .  I  lfi. 

in  re  [daho  Lode,  Decision  of  Commissioner,  July  22d,  1809;  Copp's  U.  S. 
Mining  l  >e<  I  b,  21. 


§  85  PATENTS    TO    MINERAL    LANDS.  141 

issued  to  the  parties  named  in  the  register's  certificate  of  entry. 
If  any  conveyance  has  taken  place  after  the  original  applicants 
have  commenced  proceedings  for  a  patent,  but  before  the  entry 
is  made  at  the  local  office,  the  register's  certificate  and  the  re- 
ceiver's receipt  must  be  made  out  in  the  name  of  the  grantee. 
Upon  filing  a  deed  in  the  General  Land  Office,  the  register  and 
receiver  will  be  instructed  to  so  make  out  the  certificates  and 
receipts. 

If,  however,  the  transfer  takes  place  after  the  date  of  entry, 
an  indorsement  should  be  made  upon  the  duplicate  receipts  by 
the  applicant  for  a  patent,  assigning  all  right  and  title  in  and 
to  the  premises  therein  described.  The  patent  will  then  issue 
in  the  name  of  the  grantee.1 

Transfer  of  interest  from  the  original  locators  to  the  appli- 
cant for  patent  must  be  shown.  The  identity  of  the  parties 
must  also  be  satisfactorily  established.  Where  this  is  done,  a 
difference  in  the  name  of  the  same  party,  as  used  in  the  deeds, 
or  the  abstract  of  title,  is  not  fatal  to  the  application. 

It  is  also  well  to  have  on  file  full  and  complete  copies  of  the 
respective  conveyances  showing  title  in  the  applicants,  but  ab- 
stracts of  title  are  held  sufficient.2  They  must,  however,  be 
complete  and  not  partial.3 

In  the  case  of  the  Kempton  mine,  it  was  objected  that  it  did 
not  appear  that  one  B.  F.  Buck,  one  of  the  original  locators, 
ever  transferred  his  interest.  The  Secretary,  in  deciding  the 
case,  said :  "  The  original  application  for  the  Kempton  patent, 
which  is  sworn  to  by  five  different  persons,  alleges  that '  Samuel 
Buck,  under  the  name  of  B.  F.  Buck,'  was  one  of  the  original 
locators,  and  that  the  said  Samuel  had  transferred  his  interest 
in  the  mine  to  John  Segus,  who  was  one  of  the  applicants  for 
patent.  There  is,  in  the  abstract  of  title  furnished,  a  certificate 
of  the  recorder  of  the  conveyance  from  Samuel  Buck  to  the 
said  Segus.  I  think  this  is  sufficient.  Names  are  arbitrary. 
Identity  is  the  important  matter,  and   the  identity  of  Samuel 

1  Decision  of  Commissioner,  March  8th,  1873,  Copp's  U.  S.  Mining  Decisions, 
1G2. 

2  In  re  Kempton  Mine,  Decision  of  Secretary  of  Interior,  Jan.  2d.  1  875,  1 
Copp's  Land-owner,  178. 

3  Decision  of  Comr.  Jan.  Gth,  1874;  Copp's  M.  D.  340. 


142  PATENTS  TO  MINERAL  LANDS.  §  86 

t 

Buck   with  the  B.   F.   Buck   of  the   location   is    satisfactorily 
shown."  -1 

Where  the  only  record  evidence  of  title  was  a  bill  of  sale  of 
one-third  interest  in  the  claim,  and  deeds  from  two  of  the  appli- 
cants for  patent  to  the  party  who  made  the  entry,  of  all  their 
interest  in  the  mine,  and  the  bill  of  sale  stated  that  the  claims 
were  located  as  quartz  claims  and  recorded  as  such,  the  appli- 
cants were  required  to  furnish  a  copy  of  the  location  notice,  and 
an  abstract  of  all  transfers  of  the  claims,  tracing  the  title  from 
the  original  locators  to  the  applicants  for  patent.  A  survey 
was  also  required  to  be  made  of  the  premises,  and  embracing 
only  such  surface  ground  as  was  originally  located  in  conformity 
with  local  laws.2 

§  86.  Claim  through  an  executor. — Where  an  applicant 
claimed  through  a  deed  made  by  one  of  two  executors  of  the 
estate  of  a  deceased  locator,  and  it  appeared  that  two  were  ap- 
pointed executors  and  that  the  letters  had  been  revoked,  the  ap- 
plicant was  required  to  file  a  certified  copy  of  the  letters  testa- 
mentary, with  copy  of  will  attached,  a  certificate  of  the  clerk 
showing  the  date  of  the  revocation,  and  evidence  that  one  of 
the  executors  could  legally  pass  title  by  deed.3 

Where  an  alien  is  grantee  of  a  claim — Holding  until  office 
found. — In  an  affidavit  a  party  alleged  that  "  he  is  informed 
by  said  John  Henry,  and  the  deponent  verily  believes, 
that  said  John  Henry  is  an  alien,  and  a  subject  of  Great  Brit- 
ain ;  that  deponent  has  frequently  requested  said  Henry  to 
make  declarations  of  his  intention  to  become  a  citizen  of  the 
United  States,  in  order  that  said  application  for  patent  might 
proceed  ;  bu1  (lie  said  Henry  has  constantly,  and  does  now  posi- 
tively refuse  to  make  any  such  declaration,  but  still  continues 
an  alien,  and  declines  and  refuses  to  take  any  step  toward  be- 
•  niiiing  a  citizen  of  the  United  States." 

"  Deponent  further  says   that,  by   reason  of  the  facts  afore- 

1  r ti  re  Etempton  Mine,  Decision  of  Secretary  of  Interior,  Jan.  2d,  1875,  1 
( lopp's  Land-owner,  178. 

-  In  re  Live  <>.<!<  Quartz  Mine,  Decision  of  Acting  Commissioner,  April  24th, 
1876    3  ( lopp's  Land  owner,  is. 

:;  In  re  V  E  Extension  "f  STosemite Mine,  Decision  of  Acting  Commissioner, 
April  29th,  1876,  8  <:u|.j.s  Land-owner,  18. 


§  87  PATENTS    TO    MINERAL    LANDS.  143 

said,  the  applicants  arc  unable  to  present  any  abstract  of  title 
showing  a  right  in  them  to  all  of  the  mining  claim  aforesaid, 
and  that  the  undivided  fifty  feet  thereof  stands  in  the  name  of 
the  said  John  Henry." 

It  was  urged,  for  the  applicants  for  patent,  that  an  alien  is  in- 
capable of  acquiring  a  patentable  interest  in  a  mining  location, 
and  that  the  "  attempt  of  a  party  to  convey  to  Henry  what  the 
law  prohibited  the  latter  from  holding,  did  not  in  any  way  affect 
the  rights  of  the  applicants,  the  act  being  void." 

It  was  therefore  asked  that  the  patent  issue  to  the  applicants. 
The  Commissioner  said :  "  No  patent  can  issue  upon  the  appli- 
cation as  it  now  stands,  as  they  have  not  title  to  the  entire 
premises  for  which  patent  is  sought.  It  is  true  that  John  Henry, 
being  an  alien,  has  no  patentable  interest  in  said  mine  at.  the 
present  time,  but  should  he  become  naturalized,  his  right  to  a 
patent,  upon  compliance  with  the  law,  would  be  perfect,  for 
naturalization  has  a  retroactive  effect,  so  as  to  be  deemed  a 
waiver  of  all  liability  to  forfeiture,  and  a  confirmation  of  his 
former  title."  1 

It  has  been  held  by  the  Supreme  Court  of  the  United  States, 
in  numerous  cases,  that  an  alien  can  take  by  deed  and  hold  until 
office  found.2 

The  application  for  patent  was,  therefore,  ordered  to  remain 
suspended  until  the  applicants  should  show  that  they  were  in  a 
condition  to  receive  patent.3 

§  87.  United  applications — Unincorporated  association. 

— An  application  for  patent  may  be  filed  by  an  association  of 
two  or  more  persons  owning  divided  or  undivided  interests  in  the 
premises  for  which  patent  is  sought,  and  where  the  required 
improvements  have  been  made  upon  the  premises  described  in  the 
application,  jointly  by  the  several  owners,  the  said  association  of 

1  Vide  Osterman  v.  Baldwin,  6  "Wall.  116;  Jackson  v.  Beach,  Johnson's  Cases, 
401. 

2  Vide  Fairfax,  Devisee,  v.  Hunter,  TCranch,  603;  Orrr.  Hodgson,  4  Wheat.  453; 
Craig  v.  Leslie  et.  al.  3  Wheat.  563;  Craig  v.  Radford,  3  "Wheat.  594;  Cross  v.  De 
Vallie,  1  Wall.  1;  Osterman  v.  Baldwin,  6  Wall.  116;  Governeur's  Heirs  v.  Rob- 
ertson, 11  "Wheat.  332. 

3  In  re  Lady  Allen  Lode.  Decision  of  Commissioner,  July  18th,  1876,  3  Copp's 
Land-owner,  69. 


144  PATENTS    TO    MINERAL    LANDS.  §§  88-9 

persons  may  receive  patent  therefor,  upon  full  compliance  with 
the  law  and  instructions. 

Where  it  appeared  from  the  papers  in  the  case  that  the 
several  applicants  owned  separate  and  distinct  interests  ;  that 
the  said  applicants  were  an  association  of  persons  unincorpor- 
ated ;  that  the  required  amount  had  been  expended  upon  the 
claim  at  the  joint  expense  of  the  several  members  of  the  associa- 
tion, the  applicants  were  required  to  furnish  the  following 
additional  evidence  : 

1st.  The  affidavit  of  the  applicants  as  to  whether  or  not  any- 
known  veins  or  lodes  of  gold,  silver,  cinnabar,  lead,  tin,  copper, 
or  other  valuable  deposits  existed  within  the  exterior  bounda- 
ries of  said  premises.  If  any  were  known  to  exist,  their  names 
were  required  to  be  given,  and  the  affidavits  to  show  that  no 
other  known  veins  existed  within  the  said  premises  other  than 
those  named. 

2d.  The  applicants  to  file  an  abstract  of  conveyances  from 
the  original  locators  to  the  present  applicants,  properly  certified 
to  by  the  recorder.      Also,  copies  of  the  several  locations. 

3d.  Evidence  to  be  filed  to  show  that  the  person  before  whom 
some  of  the  proofs  submitted  were  verified,  was  a  justice  of 
the  peace.1 

§  88.  Several  claims  cannot  be  embraced  in  one  appli- 
cation.— Several  claims,  separate  in  their  inception,  should  not 
be  embraced  in  one  application  for  patent.  The  slight  saving 
in  expense  does  not  compensate  for  the  delays  in  furnishing 
satisfactory  proofs  in  the  several  claims  sought  to  be  patented. 

No  application  for  patent  that  shall  embrace  more  than  one 
vein  or  lode  will  now  be  received.  This,  however,  does  not 
apply  to  placers  which  embrace  several  lodes  within  the  boun- 
daries sought  to  be  patented,2  or  to  consolidate  claims  on  the 
same  rein  or  lode.3 

§  89.  Grantee  of  several  locators  may  obtain  patent 
for  the  whole  tract. — A  number  of  bona  fide  locators,  having 

1 1. .  i  jion  of  < '( .nun'   lioner,  ( October  28th,  is7.r»,  2  Copp'a  Land-owner,  114. 
a  Sec.  II.   \<t  of  L872,  Rev.  Stats.  2333. 

'■■  Decision  V.Cting  Commissioner,  August  L7th,  L875, 2  Oopp's  Land-owner,  82; 
reversing  decision,  March  26th,  1874,  I  Oopp's  Land-owner,  '2;  Sue  ibid.  174. 


§  90  PATENTS    TO    MINERAL    LANDS.  145 

complied  with  the  laws  and  the  local  rules  and  regulations,  may 
convey  all  their  right,  title,  and  interest  in  such  locations  to  one 
person,  and  the  latter  may  apply  for  a  patent  for  the  whole 
tract  thus  located.  In  this  event,  it  is  necessary  for  the  applicant 
to  file  with  the  register  and  receiver  copies  of  the  original 
notices  of  location,  and  an  abstract  of  title  from  the  office  of 
the  proper  recorder,  showing  the  record-title  to  the  premises 
claimed  to  be  in  the  name  of  the  applicant.1 

§  90.  Conflicting  patents. — In  cases  where  two  applica- 
tions for  patent  eonflict  with  each  other,  and  the  applicants  may 
desire  to  compromise  or  amicably  settle  their  disputes  by  each 
party  releasing  to  the  other  a  portion  of  the  premises  embraced 
in  the  respective  applications,  a  survey  will  be  required  of  that 
portion  of  each  claim  which  may  be  necessary  to  show  the  com- 
promise line  agreed  upon  between  the  parties,  and  the  exterior 
boundaries  of  each  claim  to  be  patented.  It  is  deemed  unnec- 
essary in  such  cases  for  the  Land  Office  to  direct  the  Surveyor- 
General  to  make  such  surveys  in  cases  of  this  kind,  as  he  will 
do  so  upon  application  of  the  parties  in  interest.2 

A  case  arose  where  a  lode  did  not  follow  the  surface  ground 
patented  throughout  its  entire  length,  but  left  the  surface  near 
the  southwesterly  end  of  the  survey  of  the  surface  ground  and 
underlying  a  portion  of  another  survey.  It  was  found,  upon  in- 
spection of  the  official  plat  of  survey  furnished  and  filed  by  the 
applicants  for  the  patent,  as  well  as  the  diagram  posted  with  the 
notice  on  the  claim,  that  the  claim  applied  for  did  so  embrace  a 
portion  of  the  surface  ground  embraced  in  another  survey,  and 
that  it  covered  a  part  of  another  lode.  The  applicants  in  effect 
asked  the  United  States  to  sell  and  convey  to  them,  as  a  portion 
of  the  public  domain,  a  tract  of  land  and  certain  premises 
already  sold  and  conveyed.  This  the  office  declined  to  do,  and 
held  that  in  such  cases  it  is  the  duty  of  the  office  to  protect  a 
prior  patentee  by  inserting  in  the  subsecpaent  patent  such  apt 
words  as  shall  clearly  except  every  right  already  conveyed.  It 
has  been  the  uniform  practice  and  custom   of  the  office   in  the 

1  Decision  of  Commissioner,  January  22d,  1873,  Copp's  U.  S.  Mining  Decis- 
sions,  157. 

2  Ibid.  August  18th,  1874, 1  Copp's  Land-owner,  83. 

W.  C— 10.. 


146  PATENTS    TO    MINERAL    LANDS.  §  91 

recitations  of  its  mineral  patents,  to  expressly  convey  the  lode 
or  vein  named  in  the  patent,  to  the  number  of  feet  named,  as 
well  as  the  surface  ground  described  in  the  patent ;  and  it  is 
also  held  that  in  forming  an  exception  it  should  be  made  equally 
broad. 

The  form  of  exception  was  ordered  to  be  in  the  following 
words :  "  Excepting  from  this  conveyance  the  surface  ground 
and  lode  conveyed  to  the  said  I.  M.  &  E.  Company,  by  said 
patent,  dated  September  3d,  a.  d.  1872."  ] 

§  91.    Errors  in  description  in  patent — Relinquishment. 

— Where  it  appears  that  a  claim  is  erroneously  described  in  a 
patent,  the  applicant  will  be  informed  that  a  new  patent  will 
issue  to  him  for  his  claim  upon  the  receipt  at  the  Land  Office  of 
the  patent  already  issued,  with  a  relinquishment  indorsed  thereon 
to  the  United  States  of  the  premises  therein  described,  together 
with  a  certificate  of  the  recorder  that  the  relinquishment  has 
been  duly  recorded  in  the  records  of  his  office. 

The  relinquishment  should  state  that  the  same  is  made  for 
the  reason  that  the  premises  are  erroneously  described  in  said 
patent,  and  release  all  right,  claim,  title,  or  interest  to  the  prem- 
ises described.  The  recorder's  certificate  should  also  state  as  to 
whether  or  not  his  records  show  any  conveyances  of  said 
premises. 

If  the  applicant  has  conveyed  the  premises  to  any  other  per- 
son, it  will  be  necessary  for  him  to  cause  an  abstract  of  such 
conveyances  to  be  made,  certified  to  by  the  recorder,  and  accom- 
panied with  a  relinquishment  from  the  parties  named  in  the  con- 
veyances, and  to  forward  the  same  with  the  inclosure  (the 
patent)  to  the  General  Land  Office.2 

The  relinquishment  may  be  attested  under  seal  by  the  clerk 
of  any  Court  within  the  land  district  where  the  claim  is  situ- 
ated.8 

1  In  re  Hercules  &  Seven-Thirty  Lodes;  Decision  of  Commissioner,  Aug.  Itli, 
j  i  i  Copp's  Land-owner,  82.  Seo,  also,  In  re  Wandering  r.oy  Lode;  In  re 
Prince  of  Wales  Lode  and  Antelope  Lode;  Decision  of  Commissioner,  May  6th, 
1873,  Gopp's  U.  s.  Mining  Decisions,  197. 

Decision  "f  Commissioner,  June  22d,  1875,  ii  Copp's  Land-owner,  98;  In  re 
Empire  Mining  *'".  Decision  of  Commissioner,  April  llth,  1871,  Copp's  U.  S. 
M  Lning  I  >eci  ton  ,41. 

:;  Decision  <>f  <',,mmi  ■  ,i r,  .1  une,  L"Jd.  ITS."),  13  Copp's   Lund  Owner,  US;  In  re 


§   91  PATENTS    TO    MINERAL    LANDS.  147 

The  relinquishment  of  a  claim  to  a  patent  to  a  portion  of  a 
lode,  closes  and  terminates  the  proceedings  previously  had,  and 
the  claims  cannot  again  be  presented  except  by  a  party  properly 
entitled  to  the  possession,  and  after  due  proceedings  as  in  an 
original  case.1 

Calls  for  the  relinquishment  of  land  inadvertently  patented. 
— A  patent  had  inadvertently  issued  to  the  Central  Pacific 
Railroad  for  certain  land,  the  tract  having  been  returned  as 
mineral  land  by  the  Surveyor-General,  and  the  return  never 
having  been  disproved  in  the  manner  prescribed  by  law  and  the 
instructions.  Afterward,  an  application  was  made  for  a  min- 
ing patent  for  placer  mining  ground  embracing  this  tract.  The 
applicant  submitted  several  affidavits,  in  which  it  was  alleged 
that  the  applicant  for  patent  and  his  grantors  had  held  and 
Avorked  the  premises  described  in  the  application  for  nineteen 
years  last  past ;  that  the  value  of  labor  and  improvements  upon 
the  tract,  made  after  the  year  1861,  was  $35,000  in  gold  coin, 
and  that  the  tract  had  been  continuously  worked  as  a  placer 
claim  from  the  latter  date.  It  also  appeared,  from  the  certificate 
of  the  recorder  and  ex-officio  auditor  of  the  county,  that  the 
grantors  of  the  applicant  had  paid  taxes  upon  their  mining 
claim,  situate  upon  the  tract,  for- the  years  1868,  1869,  1870. 2 

The  company  was  called  upon  to  relinquish  the  land  to  the 
United  States. 

If  a  mine  is  erroneously  patented,  as,  for  instance,  to  a  rail- 
road company,  and  the  latter  does  not  relinquish  the  land  when 
called  upon,  a  patent  will  be  granted  for  the  mining  claim  as 
though  no  prior  patent  had  been  issued.  Notwithstanding  a  patent 
covering  the  mine  had  issued  to  the  Central  Pacific  Railroad 
Company,  a  placer  claim  was  taken  up  for  patenting,  the  com- 
pany not  having  relinquished  its  patent.3 

Where  a  party  refuses  to  surrender  a  patent  inadvertently 
and  unlawfully  issued,  instructions  will  be  issued  to  the  United 

Empire  Mining  Co.  Decision  of  Commissioner,  April  11th,  1871,  Copp's  U.  S. 
Mining  Decisions,  41. 

1  In  re  Kansas  Lode,  Decision  of  Commissioner,  Feb.  27th,  1872,  Copp's  U.  S 
Mining  Decisions,  79. 

2  Decision  of  Commissioner,  October  23d,  1873,  Copp's  U.  S.  Mining  Decisions, 
227. 

3  In  re  Dutch  Flat  Cation  Placer  Claim,  1  Copp's  Land-owner,  2. 


148  PATENTS    TO    MINERAL    LANDS.  §§  92-4 

States  Attorneys  of  the  District  to  take  proceedings  to  have 
the  patent  set  aside  aniL  canceled.  The  adverse  claimants  may- 
prosecute  the  suit.1 

§  92.  Second  patent  —  Entries  of  mineral  lands  by 
settlers  and  corporations. — While  the  office  was  held  to 
have  the  power  to  issue  a  second  patent,  for  the  purpose  of 
correcting;  a  mistake  or  inadvertence,  it  was  doubted  whether 
it  had  that  power  in  a  case  in  which  the  first  patent  was  obtained 
by  artifice  or  fraud,  upon  a  record  regular  upon  its  face.  This 
is  a  right  or  power  to  decide  upon  questions  of  fraud,  after  the 
consummation  of  an  entry  and  the  execution  and  delivery  of  a 
patent  thereon.  Jurisdiction  over  questions  of  fraud  more 
properly  pertains  to  Courts  of  Equity ;  and,  as  they  have  the 
power  to  afford  ample  relief,  parties  are  relegated  to  their 
remedies  in  the  Courts  ;  and  therefore,  instead  of  issuing  a  second 
patent  in  cases  where  the  first  has  been  obtained  by  fraud,  to 
the  injury  of  parties  having  a  right  or  equity  therein,  and  the 
facts  are  brought  before  the  office,  it  will  bring  the  matter  to 
the  attention  of  the  Department  of  Justice,  and  ask  that  the 
party  injured  be  permitted  to  use  the  name  of  the  United  States 
in  the  prosecution  of  proper  proceedings.2 

§  93.  Minerals  discovered  after  patent  to  agricultural 
claimant. — The  Commissioner  held,  in  1873,  that  mineral  depos- 
its discovered  upon  land  after  a  United  States  patent  therefor 
has  issued  to  a  party  claiming  under  the  laws  regulating  the 
disposal  of  agricultural  lands  and  there  being  no  reservations  of 
mineral  Lands,  pass  with  the  patent,  and  the  General  Land  Of- 
fice has  do  further  jurisdiction  in  the  premises.3 

§  94.  Setting  aside  patent. — The  Land  Office  will  do  all 
in  its  power  to  set  aside  patents  erroneously  issued.  If  a  patent 
has  erroneously  and  inadvertently  issued,  the  Land  Office  holds 
that  it  is  proper  to  recite  that  fact,  and  issue  another  patent  on 
tin-  premises.     Bui  where  it  was  contended  that  a  second  patent 

1  In  re    Wyoming  Mine,  Opinion  Assistant  Attorney-General  U.  8.  .January 
14th,  1873;  Copp's  Mining  Decisions,  152. 

2  Decision  I  ommissioner,  July  26th,  1873,  Copp's  U.  S.  Mining  Decisions,  213. 
8  [bid.  July  LOth,  L873.  [bid.  208. 


§§   95-6  PATENTS    TO    MINERAL    LANDS.  149 

could  not  pnmerly  issue,  and  as  there  is  no  question  about  the 
right  to  proceed  in  equity,  and  in  the  name  of  the  United  States 
to  set  aside  a  patent  improperly  granted,  the  Attorney-General 
was  requested  to  institute  such  suits  in  behalf  of  the  proper 
parties.1 

§  95.  Number  of  patents. — One  person  may  secure  title 
to  several  mining  claims.  The  statute  does  not  restrict  the 
number  of  patents,  but  gives  the  right  to  proceed  to  procure 
Government  title  to  as  many  valid  mining  claims  as  he  may  have 
the  possessory  right  to  under  local  laws,  and  upon  which  the 
necessary  amount  has  been  expended  in  labor  or  improvements.2 

§  96.  Protests  against  issuance  of  patents — Status  of 
protestants. — Protests  are  not  made  by  any  party  to  the  record 
in  interest,  but  are  made  by  a  third  party  who  stands  in  the 
light  of  amicus  curice,  and  who  has  the  right  of  showing  only 
that  the  applicants  have  not  complied  with  the  law.3  Parties 
who  have  not  filed  their  adverse  claims  in  time,  and  who  stand 
in  this  relation,  cannot  take  appeals  from  the  General  Land  Of- 
fice to  the  Secretary  of  the  Interior.4 

A  protest  has  no  such  office  to  perform  as  that  upon  its  being 
filed  any  right  of  intervention  accrues  save  only  in  the  nature 
of  a  challenge  of  the  applicant's  own  showing,  or  that  through 
its  instrumentality  any  trial  of  unascertained  rights  may  be  au- 
thorized. It  is  held  that  for  ascertaining  the  proper  and  neces- 
sary recital  of  a  patent  in  a  given  case,  the  applicant  is  bound 
by  the  terms  and  disclosures  of  such  filings,  as  conformably  with 
the  law,  he  rests  his  right  to  enter  and  purchase  upon ;  and  that 
for  the  further  ascertainment  and  protection  of  rights,  and  as  a 

1  Stark  v.  Starrs,  6  "Wall.  402  ;  Henshawr.  Bissell,  18  Ibid.  264;  Wandering  Boy 
Mine  v.  Highland  Chief  Mine,  2  Copp's  Land-owner,  2  ;  In  re  Prince  of  Wales, 
Antelope,  Wandering  Boy,  Highland  Chief,  and  Wellington  Mines,  Utah, 
Decision  of  Secretary  of  Interior,  April  1st,  1875,  2  Copp's  Land-owner,  2;  1 
Copp's  Land-owner,  43. 

2  Decision  Commissioner,  September  21st,  1872,  Copp's  U.  S.  Mining  Decis- 
ions, 145. 

J  In  re  Kempton  Mine,  Decision  of  Secretary,  January  2d,  1875, 1  Copp's  Land- 
owner, 178. 

4  Application  of  Lambard,  In  re  Mt.  Pleasant  Mine  and  Earl  Mine,  Decision 
Acting  Secretary  of  Interior,  Feb.  17th,  1877,  3  Copp's  Land-owner,  194;  Decis- 
ion Acting  Secretary,  March  24th,  1876,  In  re  Boston  Quicksilver  Mine. 


150  PATENTS    TO    MINERAL    LANDS.  §§  97-8 

duty  on  the  part  of  the  United  States,  it  is  held  that  the  exami- 
nation of  the  General  Land  Office  should,  whether  protest  be 
filed  or  not,  proceed  beyond  the  papers  filed  by  the  applicant 
and  into  those  general  records  of  the  Office  which  evidence  the 
final  disposition  made  of  the  public  domain ;  and  if  upon  exami- 
nation it  is  found  that  any  part  of  the  premises  applied  for  have 
been  previously  disposed  of,  that  express  exception  thereof 
should  be  inserted  in  the  subsequent  patent.3 

Where  a  protest  was  not  filed  until  after  the  expiration  of  the 
period  allowed  for  that  purpose,  it  was  not  permitted  to  suspend 
proceedings  on  an  application  for  a  placer  location.  The  rule 
in  the  Flagstaff  case  was  applied.2 

A  protest  must  be  sworn  to  before  an  officer  authorized  to  ad- 
minister oaths  in  the  land  district  where  the  claim  is  situated. 
Adverse  claimants,  notwithstanding  default  in  making  the  claim, 
may  be  considered  as  parties  to  the  contest  for  the  purpose  of 
showing  from  the  records  that  the  claimants  have  not  complied 
with  the  law.3 

§  97.  An  illegal  location  invalidates  subsequent  pro- 
ceedings.— A  location  being  illegal  and  void,  the  subsequent 
proceedings,  even  if  in  due  form,  are  also  invalid,  especially 
where  the  preliminary  proceedings  are  insufficient  to  give  the 
Land  Office  jurisdiction.  In  such  cases,  the  applicants  for  pat- 
ent can  only  protect  their  rights  by  the  commencement  of  new 
proceedings,  after  a  full  and  complete  abandonment  of  the  mine 
by  prior  oacupants  not  holding  the  fee-simple  title.4 

§  98.  Location  by  a  minor. — If  a  location  is  made  by  a 
person  under  twenty-one,  he  doing  business  for  himself,  and  in 
his  own  Dame,  :i\\d  the  location  being  in  his  own  name,  he  has 

1  In  re  Hercules  Lode  and  Seven-thirty  Lode,  Decision  of  Commissioner,  Au- 
gust 17th,  1874,  i  Copp'B  Land-owner,  82. 

-  Weske  V.  Lect,  Decision  (if   Acting  Secretary,  May  I  lth,  1872,   Copp's    U.   S. 

Mining  Decisions,  95.  Bee  Flagstaff  Lode;  Highland  Chief  Lode.  Copp's  Mining 
l  decisions,  61. 

8 McMurdy  v.  Street er,  l  Copp's  Land-owner,  34;  In  re  Northern  Light  and 
Fairview  Mines. 

1  I  d  re  Santa  Rita  del  ( lohre  Mine,  I  tecision  of  Comr.  April  15th,  1873;  Copp's 
IS.  Mining  Decisions,  188;  Decision  of  Acting  Secretary,  Nov.  6th,  1873;  Ibid. 
191. 


§  99  PATENTS    TO    MINERAL    LANDS.  151 

the  right  to  dispose  of  whatever  he  acquires  by  virtue  of  the 
location.  His  conveyance  is  not  null  and  void.  Nor  can  he  for 
that  reason  interpose  successfully  an  adverse  claim  to  the  appli- 
cation of  his  grantee,  especially  if  he  asserts  the  adverse  claim 
alone  and  not  with  or  by  his  guardian.3 

§  99.  Applications  for  several  lodes  and  a  mill-site — 
Claim  partly  in  one  district  and  partly  in  another. — Where 
a  party  applied  for  fourteen  quicksilver  mines  and  a  mill-site, 
it  was  held  necessary  for  the  company  to  file  fourteen  separate 
and  distinct  applications  for  patents. 

An  application  for  patent  can  embrace  but  one  lode  or  vein, 
except  in  cases  where  placer  claims  embrace,  within  their  ex- 
terior boundaries,  several  lode-claims.2  If  a  mill-site  is  claimed 
with  a  mine,  the  application  for  patent  may  embrace  the  mill- 
site.  Applications  for  mines  must  be  made  in  the  districts  in 
which  they  lie. 

In  all  cases  where  mining  claims  lie  partly  in  one  land  dis- 
trict and  partly  in  another,  applications  for  patents  therefor 
should  be  filed  in  that  district  where  the  principal  workings  of 
the  claim  are  situated,  as  shown  by  the  plat  and  field-notes ;  and 
the  diagrams  and  notices  should  be  posted  near  to  such  workings. 
A  copy  of  the  notice  and  of  the  diagram  should  be  posted  in 
the  register's  office  in  each  district. 

The  notice  posted  in  the  office  of  the  register,  where  the  ap- 
plication for  patent  is  not  filed,  should  state  where  the  applica- 
tion for  patent  for  the  premises  therein  described  has  been  filed, 
and  the  date  of  filing  of  such  application. 

To  the  end  that  the  applicants  may  be  to  as  little  expense  as 
possible  in  the  matter  of  publishing  the  notices  required  bylaw, 
the  publication  may  be  made  of  the  several  notices  of  intention 
to  apply  for  patents  for  the  mines  in  one  advertisement,  where- 
in will  be  accurately  described  the  premises  embraced  by  each 
of  the  applications  which  may  be  filed  in  the  office. 

This  advertisement  will  of  course  be  published  for  the  period 
of  time  required  by  law.     If  published  in  a  weekly  paper,  the 

1  In  ro  Zella  Lode,  Decision  of  Acting  Commissioner,  June  9th,  1873,  Copp'a 
U.  S.  Mining  Decisions,  202. 

2  Rev.  St.  2333.  Sec.  11,  Act  of  May  10th,  1872. 


152  PATENTS    TO    MINERAL    LANDS.  §§  100-1 

advertisement  must  be  inserted  in  ten  consecutive  issues  of  the 
paper ;  but  if  published  in  a  daily  paper,  sixty  days  must 
elapse  between  the  first  and  last  insertions  of  the  advertise- 
ment.1 

§  100.  Delaying  action  at  request  of  Congressional 
committee. — Where  a  mining  company  was  prepared  to  es- 
tablish, to  the  satisfaction  of  the  Department,  their  claim,  under 
the  Statute  of  1866,  to  receive  a  patent  for  certain  lands  in  Cal- 
ifornia, they  were  held  to  have  the  legal  right  to  have  the  ques- 
tion of  their  claim  to  such  patent  passed  upon.  The  Depart- 
ment is  bound  to  consider  and  determine  the  same,  notwithstand- 
ing requests  from  Congressional  committees  for  a  suppression  of 
action. 

If,  under  the  law,  parties  have  the  title  and  are  prepared  to 
furnish  the  proper  proofs  of  it,  the  law  gives  them  the  right  to 
a  patent,  and  the  issuance  of  a  patent  is  not  made  discretion- 
ary with  the  executive  officers  of  the  Government.  When  a 
right  is  created  by  law  and  a  duty  devolved  upon  an  executive 
department  under  the  same  law,  the  enjoyment  or  enforcement 
of  such  right  cannot  be  suspended  at  the  request  of  a  com- 
mittee of  Congress,  and  probably  could  not  be  by  the  action 
even  of  both  Houses  of  Congress,  by  any  means  short  of  a 
change  in  the  law  itself.  The  Department  can  only  pay  atten- 
tion to  such  requests  when  it  affects  a   discretionary  power.2 

§  101.  The  affidavit — Proper  party  to  make  it. — When 
the  original  locators  make  the  application  for  patent,  then  one 
of  them  must  make  the  affidavit  required  by  the  statute,  but 
when  the  original  locators  have  assigned  their  interests,  and 
the  application  is  made  by  the  assignees,  then  the  assignees  are 
the  claimants,  and  one  of  them  may  make  the  affidavit.3 

It  was  bo  held  in  the  case  of  the  Kempton  mine,  where  it 
was  objected  that  there   was  no  affidavit  of  the  proper  party 

1  Iii  re  Lake  Quicksilver  Mining  Co.  I  ><<ision  of  Commissioner,  Nov.  12th,  187S, 
2  ( lopp's  Land-owner,  130. 

:  in  re  New  [dria  Mining  Co.  Opinion  of  i.ho  U.  S.  Attorney-General,  June22d, 
1869,  13  Opinions  of  the  A.ttorneys-General,  llii. 

in  re  Kempton  Kline,  Decision  of  Secretary  of  Interior,  January  2d,  1875,  1 
Copp's  Land-owner,  178;  Rev,  Stats.  2325 


§  102  PATENTS    TO    MINERAL    LANDS.  153 

that  the  plat  and  notice  were  posted  in  a  conspicuous  place  on 
the  claim  during  the  period  of  publication.  The  sixth  section 
provides  that  "  at  the  expiration  of  the  sixty  days  of  publica- 
tion the  claimant  shall  file  his  affidavit  showing  that  the  plat 
and  notice  have  been  posted  in  a  conspicuous  place  on  the  claim 
during  said  period  of  publication."  It  was  argued  that  the 
claimant  referred  to  was  one  of  the  original  locators.  But  this 
was  held  not  to  be  necessarily  the  case,  and  the  doctrine  above 
stated  was  applied,  and  the  applicant  held  to  be  a  claimant 
within  the  purview  of  the  law,  although  not  an  original  locator, 
but  an  assignee.1 

§  102.  Verification  of  affidavit.— Section  2335  of  the  Re- 
vised Statutes  is  as  follows  :  "  All  affidavits  required  to  be  made 
under  this  chapter  may  be  verified  before  any  officer  author- 
ized to  administer  oaths  within  the  land-district  where  the  claims 
may  be  situated,  and  all  testimony  and  proof  may  be  taken  be- 
fore any  such  officer,  and,  when  duly  certified  by  the  officer  tak- 
ing the  same,  shall  have  the  same  force  and  effect  as  if  taken 
before  the  register  and  receiver  of  the  land-office.  In  cases  of 
contest  as  to  the  mineral  or  agricultural  character  of  land, 
the  testimony  and  proofs  may  be  taken  as  herein  provided  on 
personal  notice  of  at  least  ten  days  to  the  opposing  party ;  or  if 
such  party  cannot  be  found,  then  by  publication  of  at  least  once 
a  week  for  thirty  days  in  a  newspaper,  to  be  designated  by  the 
register  of  the  land  office  as  published  nearest  to  the  location  of 
such  land ;  and  the  register  shall  require  proof  that  such  notice 
has  been  given."2 

There  must  be  an  application  under  oath.  An  application 
simply  signed  by  one  as  president  and  another  as  secretary  of 
a  company,  and  not  sworn  to,  is  not  sufficient.3 

Neither  the  register  nor   receiver  has  authority   to  deputize 

1  In  re  Kempton  Mine,  Decision  of  Secretary  of  Interior,  January  2d,  1875,  1 
Copp's  Land-owner,  178. 

-Kev.  Stat.  2335;  Sec.  13,  Act  1872,  17  U.  S.  Stat.  95.  See  Rev.  Stats.  2321. 
Sec.  14  of  the  Act  of  1870,  10  IT.  S.  Stat.  217;  read  Sec.  14:  That  all  ex  parte  affi- 
davits required  to  be  made  under  this  act,  or  the  act  of  which  it  is  amendatory, 
may  be  verified  before  any  officer  authorized  to  administer  oaths  within  the  land 
district  where  the  claims  may  be  situated. 

3  Jefferson  M.  Co.  v.  Penn  M.  Co. ;  In  re  Penn  Quartz  Mine,  Decision  of  Com- 
missioner, July  21st,  1874,  1  Copp's  Land-owner,  66. 


154  PATENTS    TO    MINERAL    LANDS.  §  103 

any  person  to  administer  oaths,  and  papers  sworn  to  before  any 
person  purporting  to  act  as  deputy  for  either  register  or  receiver 
cannot  be  received  as  evidence.1 

§  103.  The  location  notice — Its  sufficiency. — In  the  in- 
quiry into  the  regularity  of  the  proceedings  prior  to  the  appli- 
cation for  a  patent,  the  location  notice  is  one  of  the  first  papers 
demanding  the  supervision  of  the  Department. 

In  the  case  of  the  Prince  of  Wales  Lode  2  the  Secretary  of 
the  Interior  took  occasion  to  remark  upon  the  latitude  allowed 
in  the  construction  of  such  notices,  and  said  :  "  It  should  be 
borne  in  mind  that  the  discovery  of  lodes,  and  the  preparation 
of  location  notices  for  the  same,  are  generally  made  by  unlet- 
tered men,  and  it  would  be  productive  of  great  hardship,  and 
perhaps  generally  result  in  an  entire  loss  of  their  valuable 
discoveries,  if  they  were  held  to  technical  accuracy  in  their 
notices  of  location.  Accordingly,  it  has  been  uniformly  held  by 
the  courts  and  the  Department  that  extreme  liberality  should  be 
shown  to  these  notices,  and  if  they  were  sufficiently  certain  to 
put  an  honest  inquirer  in  the  way  of  ascertaining  where  the 
lode  was,  that  was  sufficient." 

Accordingly,  many  location  notices,  neither  "very  certain  nor 
regular  in  form,  have  been  held  sufficient  by  the  Department, 
especially  in  the  absence  of  adverse  claims.3     But  the  sanction 

1  Decision  of  Acting  Commissioner  January  27th,  187G,  2  Copp's  Land-owner, 
162. 

2Decision  of  Secretary  of  the  Interior,  April  1st,  1S75,  2  Copp's  Land-owner,  2. 

3  Wliat  is  a  sufficient  notice  of  location— In  the  case  of  the  Prince  of  Wales  Lode, 
(Decision  of  Secretary  of  the  Interior,  April  1st,  1875,  2  Copp's  Land-owner,  2) 
anotice  of  location  in  the  following  form  was  held  sufficient: 

"The  Prince  of  Wales  Lode. 

"  Discovered  "by  Thomas  E.  Owens,  August  1st,  1870.  We,  the  undersigned, 
in  company  and  undivided,  claim  1,200  feet  on  the  above  lode  or  mass  of  ore,  or 
whatevi  rrl  may  contain,  200  feet  for  discovery  and  1,000  feet  for  location  along 
this  vein,  wherever  it  may  run,  together  with  all  dips,  spurs,  angles,  and  va- 
riations, with  all  the  privileges  granted  by  the  laws  of  the  district  and  the  Con- 
lonal  laws  of  the  United  states.  This  lode  is  situated  on  the  right-hand 
fork  of  the  creek  known  as  Silver  Fork,  within  about  200  feet,  in  a  southeast- 
direction  of  the  lode  called  the  '  Antelope,'  in  I5ig  Cottonw I  canon,  and 

now  supposed  to  run  in  a  southwesterly  and  northeasterly  direction. 

■  Discovery-  Thomas  E.  Owen,  400;  II.  \Y.  I'.ishop,  200;  T.  Robinson,  200;  J. 
.1.  Dussain,  200;  II.  Burnette,  200;"  Bee,  also,  420 Mining  Co.  v.  Bullion  Mining 
Co   Decision  of  Secretary,  March  22d,  L875,  2  Copp's  Land-owner,  5. 

Woticee  and  sworn  statements.— Where  there  was  no  adverse  claim  filed,  and 


§  103  PATENTS    TO    MINERAL    LANDS.  155 

no  sworn  statement  disputing  the  sworn  proof  filed  by  the  applicant,  the  follow- 
ing notice  and  sworn  statement  was  held  sufficient  for  a  location  previous  t<>  the 
passage  of  the  Mining  Acts: 

"  Notice  is  hereby  given  that  we,  the  undersigned,  have  located,  and  claim  ten 
(10)  claims  of  two  hundred  (200)  feet  each  on  this  Ledge  or  lode  of  precious- 
bearing  metals,  running  from  this  notice  in  a  southerly  direction,  two  t  housand 
(2,000)  feet.  This  company  shall  be  known  as  the  South  Comstock  Gold  and 
Silver  Mining  Company.  This  is  a  re-location  of  the  Lady  Adams  Company, 
dated  March  28th,  I860." 

Then  follow  the  names  of  the  locators,  and  the  number  of  feet  claimed  by 
each. 

On  the  15th  of  May,  1872,  the  company  was  incorporated  under  the  laws  of 
the  State  of  California,  and  on  the  following  day  one  George  W.  Rodgers,  who 
had  purchased  the  entire  interest  of  his  co-locators,  conveyed  said  mining  prem- 
ises to  said  Company. 

In  the  sworn  statement  of  the  Superintendent  of  the  South  Comstock  Gold 
and  Silver  Mining  Company,  accompanying  said  application  for  patent,  he  al- 
leged that  "said  Conrpany  has  become  the  owner  of,  and  is  now  in  the  actual, 
quiet,  and  undisturbed  possession  of,  and  entitled  to  the  possession  of,  two 
thousand  (2,000)  linear  feet  of  the  Comstock  lode,  vein,  or  deposit,  bearing  gold 
and  silver,  with  surface  ground  for  the  convenient  working  thereof,  as  allowed 
by  the  local  customs  and  rules  of  miners;  said  mineral  claim,  vein,  lode,  and 
deposit,  and  surface  ground,  being  situate  in  the  Devil's  Gate  Mining  Dis- 
trict, in  the  counties  of  Lyon  and  Storey,  in  the  State  of  Nevada,  and  being 
more  particularly  set  forth  and  described  in  the  official  field-notes  of  survey 
thereof  herewith  filed,  dated  the  7th  day  of  April,  1874,  and  in  the  official  plat  of 
said  survey."  He  also  alleged  that  said  "  company  and  their  ancestors,  grant- 
ors, and  predecessors  in  interest  have  held,  occupied,  and  improved  said  claim, 
and  maintained  the  actual  undisputed  possession  thereof,  from  the  date  of  said 
record  of  location,  to  wit:  the  30th  of  April,  1872,  to  the  present  date." 

In  the  sworn  statement  of  G.  ~W.  Rogers,  filed  by  the  attorneys  for  the 
patentees  in  the  office,  with  their  argument  in  this  case,  he  alleged  "that  said 
ledge  has  very  large,  heavy,  and  prominent  croppings  on  the  surface  indicating 
its  course  or  direction,  said  croppings  being  in  some  places  at  least  200  feet  in 
width,  the  greatest  width  of  the  ledge  so  claimed  by  said  South  Comstock  Gold 
and  Silver  Mining  Company  being  shown  by  the  croppings  at  'Devil's  Gate,' 
near  the  southern  end  of  said  claim,  where  the  out-croppings  are  at  least  sixty 
feet  high,  and  not  less  than  400  feet  in  width."  (In  re  South  Comstock  Gold  and 
Silver  Mining  Co.,  Decision  of  Commissioner,  December  29th,  1875,  2  Copp's 
Land-owner,  146.  See  Decision  of  Secretary  of  the  Interior,  March  22d,  1875, 
420  Mining  Co.  v.  Bullion  Mining  Co.  2  Copp's  Land-owner,  5:  Decision  of  April 
1st,  1S75,  In  re  Antelope,  Prince  of  Wales,  and  "Wandering  Boy  Mines,  2  Copp's 
Land-owner,  2;  Decision  of  Commissioner,  Jan.  18th,  1875,  In  re  Red  Pine  Mine, 
affirmed  by  Secretary  of  the  Interior,  March  8th,  1875, 1  Copp' s  L.  0. 135 ;  2  C .  L.  0. 50. 

The  case  of  "  The  Antelope  Lode." — The  location  of  this  lode  was  made  on  the 
15th  of  June,  1870,  and  recorded  June  18th,  1870.     It  was  as  follows: 

"The  Antelope  Lode,  June  13th,  1870.  Miners'  Notice — "We,  the  undersigned, 
claim  three  thousand  (3,000)  feet  in  this  ledge  or  lode,  with  all  its  dips,  angles, 
spurs,  and  variations,  to  be  known  as  'The  Antelope  Lode.'  Also,  two  hundred 
(200)  feet  discovery,  running  one  thousand  (1,000)  feet  easterly,  two  thousand 
(2,000)  feet  westerly  direction,  situate  at  the  head  of  the  first  south  fork  below 
mill  known  as  '  Mill  F,'  in  the  right-hand  fork  of  said  fork." 

Discovery,  (Signed  by  15  locators.) 

Application  for  patent  was  made  on  the  30th  of  December,  1873.     Publication 


156  PATENTS    TO    MINERAL    LANDS.  §  103 

was  made  in  the  Salt  Lake  Tribune,  commencing  on  the  4th  of  January,  1874. 
The  owners  of  the  Wellington  Lode  filed,  on  the  4th  of  March,  1874,  an  adverse 
claim. 

On  the  18th  of  August,  1874,  the  applicants  for  patent  of  the  Antelope  Lode  filed 
in  the  General  Land  Office  an  abandonment  in  writing  of  all  that  portion  of  their 
claim  covered  by  the  adverse  claim  of  the  Wellington.  The  commissioner  there- 
after treated  the  Wellington  claim  as  out  of  the  case,  and  thereupon  informally 
decided  that  the  applicants  were  entitled  to  patent;  and  on  the  2Gth  of  August, 
1874,  a  patent  was  issued  for  the  Antelope  Lode,  excluding  the  premises  claimed 
by  the  Yv'ellington.  No  notice  of  this  decision  was  given  to  the  Wellington  or 
their  attorneys.  They  claimed  that  they  should  have  had  notice,  and  that  they 
had  the  right  of  appeal  to  the  Department,  which  right  had  been  cut  off  by  the 
neglect  to  give  them  notice,  and  by  the  issuance  of  the  patent.  They  alleged  that 
they  desired  to  appear  and  protest  against  the  issuing  of  the  patent  to  the  claim- 
ants. They  claimed  that  the  location-notice  did  not  describe  the  claim  as 
minutely  as  the  local  laws  required,  in  that  it  did  not  name  the  starting  point, 
and  did  not  show  that  the  locators  marked  their  claim  with  stakes  or  hillocks, 
with  the  names  of  the  claimants  on  a  distinctly  written  notice;  that  they  had 
failed  to  show  that  the  locators  had  done  twenty-five  dollars  worth  of  work  within 
ten  days  after  recording  their  claim;  that  they  failed  to  show  that  one  of  the 
locators,  not  one  of  the  applicants,  was  a  citizen  of  the  United  States;  that  the 
required  amount  of  improvement  and  expenditure  was  not  done  on  the  claim, 
but  was  done  on  another — the  Prince  of  Wales ;  that  the  notice  and  diagram 
were  posted  on  the  Prince  of  Wales,  instead  of  the  Antelope;  that  they  failed 
to  show  that  the  publication-notice  was  given  in  a  paper  designated  by  the  regis- 
ter ;  that  no  final  survey  of  the  claim  as  patented  was  made ;  that  the  claim  was 
floated;  and  above  all,  that  the  filing  of  the  adverse  claim  required  that  all  pro- 
ceedings should  be  suspended  until  after  the  judgment  of  the  Court  had  been 
rendered, 

The  Antelope  Lode,  as  originally  located,  covered  a  portion  of  the  premises 
afterwards  included  in  the  patent  to  the  Prince  of  Wales  Lode.  Those  portions 
of  the  claim  not  so  included,  and  perhaps  others,  were  patented  to  the  Antelope 
claimants. 

The  question  was  presented,  whether  the  irregularities  were  such  as  to  require 
the  i  epartment  to  institute  proceedings  to  set  aside  the  patent. 

The  Secretary  said:  '"If  there  are  no  adverse  interests,  then  it  seems  to  me  that 
thin'  is  no  good  ground  for  interference  with  the  patent.  There  is  no  pretense 
that  any  adverse  interests  have  been  injuriously  affected,  except  those  of  the 
Wellington  claimants." 

I!<  quirt  meats  of  re-location  certificate. — In  Philadelphia  Lode  v.  Pride  of  the 
Wes1  Lode,  Colorado,  a  location  was  sustained  under  the  following  state  of 
facts:  it  was  shown,  by  certified  copies  of  the  notices  of  location,  that  the 
Pride  of  the  Wes1  Lode  was  located  June  10th,  1874,  and  record  made  nf  such 
location  on  the  19th  of  the  same  month,  and  againlocated  August  7th,  1874,  and 
recorded  on  t  he  Bameday. 

On  the  UJthdayof  September,  1874,  an  additional  certificate  of  location  was 
recorded,     [n  this  notice  i1  was  staled  that  they  claimed  the  Pride  of  the  West 

lode  accordingto  the  survey  made  the  16th  Sept  ember,  1874,  by  T.  M.  Trippc, 

i         Deputy  Surveyor,  as  follows,  viz:  "Punning  from  the  discovery  tunnel 

0d<  '  30mm.  E.  (Mag.'Var.  I4deg.  30 min.) 922 feet,  thence  S.  6deg.  30min.. 

w.  (Mag.  Var,  it  deg.  30  min.)  578  feet,  being  1,500  feet  linear  and  horizontal 

hum  orement  along  the  surface  of  t  he  lode,  with  150  feet  in  width  on  each  side 

ci  niir  line  thereof." 

The  flral  two  location  notices  recorded  did  not  give  the  courses  along  the  line 

of  the  premises  claimed,  bul  the  last  one  did. 


§  103  PATENTS    TO    MINERAL    LANDS.  157 

The  act  of  the  Colorado  legislature  concerning  mines,  which  was  approved 
February  13th,  1874,  and  which  went  into  force  June  15th,  1874,  provides  in  the 
thirteenth  section  thereof  that  ''if  at  any  time  the  locator  of  any  mining  claim 
heretofore  or  hereafter  located,  or  his  assigns,  shall  apprehend  that  his  original 
certificate  was  defective,  erroneous,  or  that  the  requirements  of  the  law  had  not 
been  complied  with  before  filing,  or  shall  Ik:  desirous  of  changing  his  surface 
boundaries,  or  taking  in  any  part  of  an  overlapping  claim  which  has  been  aban- 
doned, *  *  *  such  locator  or  his  assigns  may  file  an  additional  eertiiicate 
subject  to  the  provisions  of  this  act,"  etc. 

It  appeared  that  the  locators  of  the  Pride  of  the  West  lode  made  an  additional 
eertiiicate,  based  upon  an  actual  survey  executed  by  Deputy  Surveyor  Trippe, 
and  filed  their  additional  certificate  dated  18th  September,  1874,  for  record  in  the 
office  of  the  County  Clerk  and  Recorder  of  La  Platte  County,  Colorado,  Septem- 
ber 18th,  1874. 

The  Deputy  Surveyor  in  his  sworn  statement  alleged  that  when  he  made  the 
survey  of  September  lGth,  1874,  he  "placed  six  posts  upon  the  claim,  in  full 
compliance  with  all  the  requirements  of  the  law." 

It  was  urged  that,  as  the  additional  location  certificate  did  not  state  the  land 
or  mining  district,  the  county,  State,  or  Territory,  in  which  the  claim  was  located, 
and  failed  to  state  the  date  of  the  location,  the  same  was  void,  and  not  made  in 
accordance  with  law. 

This  location  notice  was  signed  by  all  the  locators,  was  dated  September  18th, 
1874,  and  recited  the  fact  that  it  was  a  re-location  notice,  and  that  the  claim  was 
situated  on  a  certain  mountain.  This  notice  was  signed  by  all  the  original 
locators,  was  recorded  the  same  day  that  it  was  dated,  in  the  same  book  of 
records  that  the  two  former  locations  of  the  claim  were  recorded. 

In  both  of  the  former  notices,  the  mining  district,  county,  and  Territory  were 
stated,  also  the  date  of  the  location  of  the  claim. 

This  re-location  certificate,  based  upon  an  actual  survey  made  by  a  U.  S.  Dep- 
uty Mineral  Surveyor,  was  held  to  be  made  in  conformity  with  the  provisions  of 
the  local  laws  and  Congressional  enactments. 
The  objection  to  the  location  of  said  claim  was  accordingly  overruled. 
Philadelphia  Lode  v.  Pride  of  the  West  Lode,  Decision  of  Commissioner, 
Aug.  2Sth,  187(3,  3  Copp's  Land-owner,  82;  Decision  of  June  10th,  187G,  Ibid. 

Re-locations  in  Colorado. — The  Act  of  Colorado,  approved  February  13th,  1874, 
declares  the  manner  in  which  re-locations  may  be  made  in  that  Territory. 
Where  re-locations  are  made  under  the  Colorado  act,  by  parties  who  have  the 
possession  and  the  right  of  possession  to  a  mining  claim,  for  the  purpose  of 
changing  the  surface  boundaries,  increasing  the  width  of  surface  ground,  or 
other  reasons,  the  parties  who  apply  for  patents  for  such  mines  should  file  a 
copy  of  the  original  notice  of  location,  an  abstract  of  title  tracing  the  record 
title  from  the  original  locators  to  the  re-locators,  a  copy  of  the  re-location  notice, 
and  an  abstract  of  any  transfers  made  of  the  re-location.  Where  parties  make 
applications  for  patents  for  mines  which  have  been  re-located  as  abandoned,  they 
shoidd  file  with  their  application  a  copy  of  the  re-location  notice,  and  an  ab- 
stract of  all  the  transfers  therexmder.  They  should  also  file  proof,  full,  positive, 
and  complete,  in  regard  to  the  abandonment  of  prior  location,  setting  forth  the 
facts  necessary  to  show  such  abandonment.  Where  a  party  applies  for  a  patent 
for  a  mine  to  which  he  claims  the  right  of  possession  by  reason  of  the  fact  that 
co-claimants  have  failed  to  contribute  their  pro  rata  share  of  the  amount  required 
by  law  to  be  expended  annually,  the  applicant  must  file  with  his  application  for 
patent  and  other  proofs,  a  copy  of  the  original  notice  of  location,  an  abstract 
of  all  transfers  thereunder,  and  proofs  that  provisions  of  the  fifth  section  of  the 
Mining  Act  of  May  10th,  1872,  were  fully  and  strictly  complied  with  by  the 


158  PATENTS    TO    MINERAL    LANDS.  §§  104-5 

given  to  these  informal  notices  was  generally  in  cases  of  locations 
prior  to  the  passage  of  the  mining  acts.  Since  these  acts  there 
are  certain  requirements  that  must  be  complied  with.1 

§  104.  Parol  evidence  admissible  to  aid  the  notice  of 
location. — That  parol  evidence  is  admissible  to  aid  in  the  loca- 
tion of  a  mining  claim,  and  define  what  tract  is-  embraced  in  a 
location,  appears  to  be  well  settled.  Where  the  testimony  of 
four  deputy  mineral  surveyors,  and  four  others,  their  attend- 
ants, had  been  filed,  and  showed  that  they  had  made  a  careful 
survey  of  the  premises,  and  found  that  the  location-application 
and  patent  were  for  substantially  the  same  premises,  these  per- 
sons, having  the  means  of  knowing,  and  having  no  motive  for 
misstating  the  facts,  an  objection  that  the  application  for  patent 
and  the  final  survey  and  patent  did  not  conform  to  the  original 
location,  was  considered  not  supported  by  the  weight  of  the  evi- 
dence, and  was  overruled.2 

§  105.  The  plat  must  show  accurately  the  boundaries 
of  the  claim. — A  Surveyor-General  of  the  State  will  not  be 
instructed  to  correct  the  plat  and  field-notes  of  his  survey  of 
the  mining  premises  claimed  by  the  applicant,  and  for  which  a 
patent  is  requested,  in  order  that  said  plat  and  field-notes  may 
be  intelligent  and  in  conformity  with  law.  If  the  parties  have 
complied  with  the  law,  no  corrections  are  necessary.  If  they 
have  not,  the  application  is  invalid. 

Where  neither  the  plat  nor  field-notes  showed  the  exterior 
boundaries  of  the  claim,  nor  their  length,  it  was  held  that  they 
did  not  show  "accurately  the  boundaries  of  the  claim,"  espec- 
ially as  no  evidence  was  furnished  that  the  exterior  boundaries 

party  or  parties  who  had  niacin  1  lie  required  expenditures  and  improvements, 
ami  given  notice  thereof  in  due  form  to  ihc  claimants  who  had  failed  to  con- 
tribute. The  proof  in  rases  of  abandonment  and  notice  to  co-claimants  must 
be  clear,  positive,  and  in  strict  compliance  with  the  statutes. 

(Letter  from  the  Acting  Commissioner  of  the  General  Land  Office,  to  the  Reg- 
ister and  Receiver  at  Central  City,  Colorado,  dated  April  21st,  187(J.  Application 
of  Nazi  n  Cheney,  3Copp's  Land-owner,  37.) 

1  See  A  lite,  Sec.  .77. 

2  In  is,  ( 'ommissioner  General  Land  Office, November  20th,  1873;  Kelly 
,.  Taylor,  23Cal.  14, 


§§  106-7  PATENTS    TO    MINERAL    LANDS.  159 

of  the  claim  had  been  "distinctly  marked  by  monuments  on  the 
ground." * 

§  106.   Surveys  should  show  exterior  boundaries.— In 

all  cases  the  plat  and  field-notes  of  survey  should  show  the  ex- 
terior boundary  of  the  claim  for  which  an  application  for  patent 
is  made.  The  width  of  the  claim,  as  represented  upon  the  plat 
and  described  in  the  field-notes,  in  no  case  should  exceed  the 
amount  of  surface  ground  allowed  by  local  laws  and  customs.2 

§  107.  Specific  surface  ground. — In  the  case  of  the  420 
Mining  Company  v.  The  Bullion  Mining  Company,8  it  was 
claimed  that  the  application  was  invalid  because  it  failed  to 
designate  the  specific  surface  ground  claimed.  The  second  sec- 
tion of  the  Act  of  1866,  under  which  the  application  was  made, 
provided  that  the  diagram  filed  should  be  "  so  extended,  laterally 
or  otherwise,  as  to  conform  to  the  local  laws,  customs,  and  rules 
of  miners."  The  application,  of  which  the  diagram  was  in  fact 
a  part,  must  have  alleged  the  claim  as  required  by  such  local 
laws,  customs,  and  rules,  and  if  no  surface  ground  was  pro- 
vided for,  a  failure  or  omission  to  state  the  amount  claimed,  by 
specific  description,  was  not  a  defect  in  pleading.  The  Secre- 
tary of  the  Interior,  in  deciding  the  case  on  appeal,  said : 

"  The  claim  under  consideration  was  located  June  23d,  1859, 
the  entire  premises  claimed  being  then  within  the  limits  of  the 
Gold  Hill  Mining  District,  having  a  regularly  adopted  code  of 
laws.  This  district  was  subsequently,  during  the  year  1859,  di- 
vided, and  the  now  Virginia  District  created  therefrom.  This 
last-mentioned  district  adopted  a  code  of  laws  September  14th, 
1859.  The  Bullion  claim  lies  partly  within  each  of  these  dis- 
tricts. "  Upon  a  careful  examination  of  the  laws  of  both  Gold  Hill 
and  Virginia  Districts  I  am  unable  to  find  any  provision  what- 
ever, giving  surface  ground  to  quartz  or  ledge  claims.  Sec.  13 
of  the  Gold  Hill  laws  is  as  follows,  viz :  '  All  quartz  claims 
shall  not  exceed  300  feet  in  length,  including  the  dips  and  spurs.' 

1  Decision  of  Commissioner,  January  Cth,  1874,  Copp's  U.  S.  Mining  Decisions, 
340:  Kev.  Stat.  2325,  Sec.  6,  Act  of  1872. 

2  Decision  of  Commissioner,  Sept.  11th,  1873,  Copp's  TJ.  S.  Mining  Decisions,  223. 
8  Decision  of  the  Secretary  of  the  Interior,  March  22d,  1875,  2  Copp's  Land- 
owner, 5. 


160  PATENTS    TO    MINERAL    LANDS.  §  108 

"  Article  1  of  the  Gold  Hill  laws  is  as  follows,  viz  :  All  quartz 
claims  hereafter  located  shall  be  200  feet  on  the  lead,  including 
all  its  dips  and  angles.'  There  are  no  other  provisions  whatever 
relating  to  the  quantity  or  extent  of  lode  claims,  and  no  provisions 
relating  in  any  way  to  surface  ground,  except  such  as  are  evi- 
dently intended  to  apply  to  placer  locations.  It  is  clear,  how- 
ever, that  it  was  the  custom  or  rule  in  these  districts  to  take  as 
surface  for  quartz  claims  all  the  ground  lying  between  the  two 
walls  of  the  lode. 

"  The  application  under  consideration  expressly  alleged  that 
the  local  laws,  customs,  and  rules  did  not  permit  any  surface 
ground  to  be  occupied  except  the  surface  of  the  vein  or  lode  ; 
that  the  walls  of  the  lode  were  at  that  time  unascertained  and 
unascertainable,  but  that  the  surface  of  the  premises  claimed 
was  the  surface  of  said  lode,  estimated  at  111  acres.  The  lode 
itself,  so  far  as  known,  was  accurately  described  in  both  appli- 
cation and  diagram. 

"  I  think  this  application  describes  the  claim  as  the  law  re- 
quired it  should  be  described.  It  literally  follows  your  instruc- 
tions issued  under  the  act  then  in  force.  That  act  required  the 
diagram  to  be  so  extended  as  to  conform  to  local  laws,  and  the 
local  laws  allow  just  such  a  claim  as  is  described,  and  none 
other.  "  I  am  not  entirely  clear  that  to  have  been  more  explicit 
would  have  made  the  claim  liable  to  the  very  objection  now 
urged." 

§  108.  Posting  on  claim,  proof  of. — The  applicant  must 
post  a  copy  of  the  plat,  together  with  a  notice  of  the  applica- 
tion for  a  patent,  in  a  conspicuous  place  on  the  land  embraced 
in  such  plat,  previous  to  the  filing  of  the  application  for  a  patent, 
and  shall  file  a  copy  of  the  notice  in  the  land  office.  The 
plat  must  be  accompanied  with  the  notice  of  intention  to  apply 
for  a  patent  therefor;  the  notice  must  give  the  date  of  posting, 
the  name  of  the  claimant,  the  name  of  the  claim,  mine,  or  lode, 
the  milling  distrid  and  county,  whether  the  location  is  of  record, 
and  ii'  so,  where  the  record  may  be  found;  the  number  of  feet 
claimed  along  the  vein  mid  (lie  presumed  direction  thereof;  the 
number  of  feet  claimed  on  the  lode  in  each  direction  from  the 
point   <it'   discovery,  or  other  well-defined  place  on  the  claim; 


§  109  PATENTS    TO    MINERAL    LANDS.  161 

the  name  or  names  of  adjoining  claimants  on  the  same  or  other 
lodes  ;  or  if  none  adjoining,  the  names  of  the  nearest  claims.1 

In  the  case  of  the  Kempton  Mine,  it  was  objected  that  there 
was  no  sufficient  proof  that  the  plat  and  notice  were  posted  in 
a  conspicuous  place  on  the  claim.  The  objection  was  not  that 
there  was  not  a  plat  and  notice  posted  on  the  claim,  but  that 
there  was  no  proof  what  plat  and  notice  were  thus  posted. 
There  were  on  file,  however,  the  affidavits  of  numerous  persons 
that  the  plat  and  notice  were  posted  in  a  conspicuous  place  on 
the  claim,  and  so  remained  during  the  entire  period  of  publica- 
tion. They  did  not  specify  particularly  what  plat  and  notice, 
because  at  the  time  they  were  taken  there  was  no  controversy 
about  their  contents  ;  but  they  did  show  that  a  plat  and  notice, 
which  they  all  understood  to  be  in  due  form,  were  properly 
posted.     The  objections  were  overruled.2 

§  109.  Publication  of  the  notice. — The  register  of  the 
land  office,  upon  the  filing  of  the  application,  plat,  field-notes, 
notices,  and  affidavits,  shall  publish  a  notice  that  such  applica- 
tion has  been  made,  for  the  period  of  sixty  days,  in  a  news- 
paper to  be  by  him  designated  as  published  nearest  to  such 
claim ;  and  he  shall  also  post  such  notice  in  his  office  for  the 
same  period.3 

The  publication  is  at  the  expense  of  the  claimant.  In  all 
cases  sixty  days  must  intervene  between  the  first  and  last  inser- 
tion of  the  notice  in  the  newspaper.  The  notices  published  and 
posted  must  be  full  and  complete,  and  embrace  all  the  data  given 
in  the  notice  posted  upon  the  claim.  The  greatest  care  should 
be  exercised  in  the  preparation  of  these  notices,  inasmuch  as 
upon  their  accuracy  and  completeness  will  depend,  in  a  great 
measure,  the  regularity  and  validity  of  the  whole  proceeding. 
After  the  sixty  days'  publication  has  expired,  the  claimant  will 
file  his  affidavit  showing  that  the  plat  and  notice  remained  con- 
spicuously posted  upon  the  claim  sought  to  be  patented  during 
the  sixty  days  of  publication.4 

1  Rev.  Stat.  2325.    Instructions  Feb.  1st,  1877,  Subdivision  29. 

2  In  re  Kempton  Mine,  Decision  of  Secretary,  Jan.  2d,  1875,  1  Copp's  Land- 
owner, 178. 

3  Rev.  Stat.  2325. 

4  Instructions  Feb.  1st,  1877,  Subdivisions  34-40. 

W.  C— 11. 


162  PATENTS    TO    MINERAL    LANDS.  §  109 

Published  notices  must  be  numbered  to  correspond  with  the 
record  of  applications,  and  instead  of  being  headed  "  Lode  No- 
tice," etc.,  the  words  "  Mining  Application  No.  — "  should  be 
used,  inserting  the  number  of  the  application.1 

The  notice  must  be  published  with  the  knowledge  of  the 
register,  and  in  a  newspaper  designated  as  published  nearest 
the  claim,  or  the  application  will  be  rejected.2 

The  publication  of  notices  may  be  in  newspapers  published 
weekly,  but  must  be  for  the  full  period  of  sixty  days.  A  pub- 
lication in  a  weekly  paper  for  nine  successive  weeks  (nine  inser- 
tions) is  not  a  publication  "for  the  period  of  sixty  days."  The 
publication  must,  moreover,  be  in  only  one  newspaper  for  the 
prescribed  period.3 

An  objection  that  the  publication  is  not  according  to  law  in 
point  of  time,  should  be  made  before  patent.  It  is  considered 
too  late  afterwards.  And  so  with  an  objection  that  the  proof  of 
posting  the  notice  and  diagram  on  the  claim  did  not  show  when, 
where,  or  for  what  period  the  same  was  posted.4 

A  clerical  error,  as  issuing  the  final  certificate  of  entry  to 
Thomas  Butterfield,  and  issuing  the  patent  to  Thomas  Butter- 
wood,  the  true  name,  and  the  one  mentioned  in  the  application 
and  notice,  does  not  invalidate  the  patent.5 

Character  of  the  register  as  agent  for  the  applicant. — For 
the  purpose  of  preparing  and  publishing  the  notice,  the  reg- 
ister acts  as  the  agent  for  the  applicant,  and  it  is  the  latter's 
duty  to  sec  that  the  officer  substantially  complies  with  the  law. 
The  object  of  notice  is  to  advise  those  who  may  have  adverse 
interests  of  the  pending  of  a  claim  that  may  affect  their  in- 
terest, and  it  will  not  answer  to  say  that  the  applicant  shall  not 
be  responsible  for  the  notice,  or  that  he  shall  receive  his  patent, 
although  the  officer  neglected  to  do  his  duty.0 

1  Decision  <»f  Acting  Commissioner,  March  7th,  1876,  2  Copp's  Land-owner,  180. 
•'In  re  Cascade  Lode,  I  Copp's  Land-owner,  60. 

8McMurdyu.  Streeter,  I  Copp's  Land-owner,  34;  in  re  Northern  Light  and 
View  Mines,  I   Copp's   Land-owner,:;!;    In  re  Secret  ('anon  (Quartz   Mine, 
on  of  Commissioner,  November  L2th,  1873,  Copp's  Mining  I  >eeisions,  234. 
'Prince  of  \\':i  !<s  Lode,  Decision  of  Secretary,  April  1st,  1875;  2<!npp's  Land- 
cm  H'T,  2 

8  Ibid. 

r'In  re  Flagstaff  Lode,  Opinion  of  Assistant  Attoniey-Ocneral,  November 
24th,  1871,  Copp's  U.  S.  Mining  Decisions,  70,  71,  72. 


§   110  PATENTS    TO    MINERAL    LANDS.  163 

§  110.  Time  of  publication. — The  first  day  should  be  ex- 
cluded, and  the  last  included  in  the  computation.  Where  an 
affiant  showed  that  the  notice  of  intention  to  apply  for  a  patent 
was  published  "  from  January  7th  to  March  7th,  1874,  inclu- 
sive," the  notice  being  published  twenty-four  days  in  the  month 
of  January,  twenty-eight  days  in  February,  and  seven  days  in 
March,  making  fifty-nine  days  in  all,  it  was  held  insufficient.1 

A  case  arose  where  the  Register  directed  the  notice  to  be  pub- 
lished in  a  newspaper  called  the  Daily  Herald  for  sixty  days. 
The  notice  was  published  in  said  paper  only  on  the  28th,  29th, 
30th  and  31st  of  December — four  insertions.  The  notice  was 
then  discontinued  in  the  Daily  Herald  by  instruction  of  the  ap- 
plicant, and  inserted  in  the  Weekly  Herald.  In  the  Weekly  Her- 
ald the  notice  was  inserted  from  the  6th  of  January  to  the  2d 
of  March,  1876. 

In  the  case  of  the  Jenny  Lind  Mining  Co.  et  al.  v.  Eureka 
Mining  Co.,  the  Secretary  of  the  Interior  held  that  in  estimat- 
ing the  sixty  days  of  publication  required  by  the  act  of  May 
10th,  1872,  the  first  day  of  publication  should  be  excluded  and 
the  last  included. 

In  the  case  of  J.  H.  McMurdy  et  al.  v.  E.  S.  Streeter  et  al., 
the  Secretary  of  the  Interior  held  that  "the  time  elapsing  be- 
tween the  first  and  last  insertions  must  include  the  full  period 
of  sixty  days."  From  the  6th  of  January  to  the  2d  of  March, 
excluding  the  first  day,  being  only  fifty-six  days,  the  publication, 
therefore,  in  the  Weekly  Herald  was  held  not  sufficient,  even 
though  the  notice  had  been  inserted  therein  by  direction  of  the 
register. 

The  applicants,  therefore,  did  not  give  sufficient  notice  by  pub- 
lication, having  published  the  notice  for  four  days  only  in  the 
paper  designated  by  the  officer  to  whom  the  law  has  delegated 
the  power  to  authorize  the  publication  of  notices  in  case  of  ap- 
plications for  patent  for  mining  claims. 

The  second  notice  was  inserted  in  the  Weekly  Herald  without 
authority  of  the  register,  and  for  fifty-six  days  only. 

1  Decision  of  Commissioner,  July  21st,  1874,  Jefferson  Mining  Co.  v.  Pennsyl- 
vania Mining  Co.  In  re  Penn.  Mine,  1  Copp's  Land-owner,  66;  Jenny  Lind  Min- 
ing Co.  v.  Eureka  Mining  Co.  Decision  of  Secretary  of  the  Interior ;  rbid.  Prince 
of  "Wales  Lode.  Decision  of  Secretary,  April  1st,  1875,  2  Copp's  Land-owner,  2. 


164  PATENTS    TO    MINERAL    LANDS.  §  111 

The  statute  having  in  this  material  requirement  been  disre- 
garded, the  publication  as  made,  and  all  subsequent  proceedings 
founded  upon  it,  were  held  irregular  and  invalid,  and  the  appli- 
cation for  patent  was  accordingly  rejected.1 

§  111.  Counting  the  sixty  days  for  publication  of 
notice. — The  notice  of  intention  to  apply  for  a  patent  must  be 
published  for  the  period  of  time  required  by  law. 

In  computing  the  time  for  the  sixty  days'  publication,  the  date 
of  the  jDaper  as  given  thereon  governs,  even  though,  as  a  matter 
of  fact,  the  paper  may  have  been  previously  issued  and  put  in 
circulation. 

The  first  day  of  publication  is  excluded,  and  the  last  in- 
cluded in  the  computation.  This  much-vexed  question  in  regard 
to  the  inclusion  and  exclusion  of  the  first  day,  appears  to  be 
settled  as  follows  :  When  the  computation  is  to  commence  from 
an  act  done,  the  day  on  which  the  act  is  done  is  excluded.2 

The  cases  also  establish  the  proposition,  that  where  there  is  a 
doubt  as  to  whether  the  day  in  which  an  act  is  done  should  be 
included  or  excluded,  that  construction  should  be  adopted  which 
will  support  a  contract  or  deed,  rather  than  that  which  would 
destroy  it ;  that  which  will  prevent  a  forfeiture,  rather  than 
create  one — and  in  cases  of  statutory  enactment,  that  which 
will  be  most  favorable  to  the  party  for  whose  benefit  the  statute 
was  enacted.  The  provision  that  there  should  be  a  publication 
of  sixty  days  was  made  for  the  benefit  of  adverse  claimants, 
and  for  the  purpose   of  giving  them  an  opportunity  to  assert 

1  Decision  of  Acting  Commissioner,  April  29th,  1876,  3  Copp's  Land-owner,  18. 

2  In  re  Eureka,  Montana,  Excelsior,  King  David,  and  May  Henrietta  Lodes, 
Jinny  Lind  Mining  Co.  v.  Eureka  Mining  Co.  Decision  of  Secretary,  Nov.  24tk, 
1873,  Copp's  U.  S.  Mining  Decisions,  169.  Opinion  of  Assistant-Attorney-General, 
Sept.  30th,  1873,  Ibid,  L70.  Sec,  also,  Griffith  v.  Bogert,  18  How.  U.  S.  162;  4Kent, 
103, note,  llthEd.;  2  Parson's  Cont.  683,  note;  Pope  v.  Headen,  5  Ala.  433 ;  Lyon 
v.  Hunt.  11  Ala.  295;  Lang  v.  Phillips.  27  Ala.  311;  Kimm  v.  Osgood,  19  Mo. 
60;  28  Miss.  48;  Bigelow  v.  Willson,  1  Pick.  485;  States.  Schwerlo,  5  Pick.  279; 
Wiggin  - .  Peters,  1  Met.  127;  Farwell  V.  Rogers,  4  Cush.  460;  Weeks  v.  null,  19 
Conn.  376;  Carleton  v.  Byington,  16  Iowa,  588;  Carothers  v.  "Wheeler,  1  Oregon, 
ni:  Judd  v.  Pulton,  L0  Barb.  L17;  Bissel]  v.  Bissell,  11  Barb.  96;  Cornell  v.  Moul- 
ton,  3  Denio,  12;  Barr  v.  Lewis,  6  Texas,  76;  State  v.i  Gasconade  Co.  Ct.  33  Mo. 
L02  <  amii.  Warren,!  Houston,  Del.  L88;  Gorhamu.  Wing,  10  Mich.  486;  Sheets 
y.Selden,2  Wall.  177;  Pagew.  Weymouth,  47 Maine,  238;  Walsh  v.  Boyle,  30 Md. 
262;  Thome  v.  Moshor,  20  N",  J.  Eq.  267;  Gorst  v.  Lowndes,  11  Sim.  434;  Wilkin- 

■        on,  '-1  Queen's  B.  141. 


§§  112-13  PATENTS    TO    MINERAL    LANDS.  165 

their  adverse  claims  ;  and  in  case  of  doubt  as  to  whether  the  first 
day  of  publication  should  be  included  or  excluded,  that  doubt 
should  be  decided  in  their  favor.1 

Where  notice  of  the  application  is  published  in  one  paper  a 
portion  of  the  sixty  days,  and  in  another  paper  for  the  balance 
of  the  time,  the  notice  is  not  published  according  to  law.  The 
law  must  be  strictly  complied  with.  In  such  case  the  applicant 
must  commence  de  novo,  although  no  new  survey  is  necessary.2 

§  112.  Proof  of  publication. — Where  it  was  objected  that 
the  proof  of  publication  did  not  state  the  last  day  of  publica- 
tion— an  affidavit  of  the  editor  of  the  paper  in  which  the  no- 
tice was  published  stated  that  "  the  attached  notice  was  pub- 
lished in  the  Salt  Lake  Review  for  a  period  of  ninety  days, 
commencing  August  15th,  1871."  This  was  held  sufficient 
prima  facie  proof.  And  where  it  was  objected  that  the  notice 
and  diagram  were  not  posted  on  the  claim  until  five  days  after 
they  were  filed  in  the  Land  Office,  and  five  days  after  the  pub- 
lication had  been  commenced,  the  proof  showed  that  they  were 
posted  on  the  claim  for  more  than  ninety  days,  it  was  held  that 
they  should  have  been  posted  before  the  publication ;  but  the 
omission  was  an  irregularity  only,  and  was  not  fatal.3 

§  113.  The  newspaper  in  which  the  notice  is  to '  be 
published. — The  register  must  publish  the  notice  in  a  "  news- 
paper to  be  by  him  designated  as  published  nearest  to  such 
claim."'  His  duty  is  to  designate  it,  and  it  should  be  the  paper 
published  nearest  to  the  claim.  The  public  have  a  right  to 
look  to  the  paper  published  nearest  the  claim  as  the  one  in 
which  a  notice  of  application  for  a  patent  should  appear.  If 
two  or  more  papers  of  repute  are  published  equidistant,  or  very 
nearly  so,  from  the  claim,  the  register  must  designate  the  one 
in  which  the  notice  shall  appear ;  but  in  other  cases  the  paper 
published  nearest  the  claim  must  be  designated,  provided  the 
same  is  a  reputable  newspaper  of  general  circulation.     If  such 

1  See  cases  cited  Ante. 

2  In  re  Secret  Canon  Quartz  Mine,  Decision  of  Commissioner,  November  12th, 
1873,  Copp's  Mining  Decisions,  234. 

3  Wandering  Boy  Lode,  Decision  of  Secretary,  April  1st,  1875,  2  Copp's  Land- 
owner. 2. 


166  PATENTS  TO  MINERAL  LANDS  §  113 

a  paper  should  be  published  within  two  miles  of  the  claim,  and 
another  should  be  published  in  a  town  six  miles  from  the  claim, 
the  register  has  no  right  or  discretion  to  choose  the  latter.1 

In  the  case  of  the  Omaha  Gold  Quartz  Mine  2  it  was  objected 
that  the  notice  was  not  duly  published,  having  been  published 
in  a  newspaper  called  the  Nevada  Transcript,  Nevada  City, 
California,  instead  of  in  the  Grass  Valley  Union,  published  at 
Grass  Valley,  California,  and  that  the  notice  and  diagram  were 
not  posted  conspicuously  upon  the  claim.  By  the  affidavits  of 
the  superintendent  of  the  mine,  and  eighteen  other  persons,  it 
was  shown  that  the  notice  and  diagram  were  posted  in  the  most 
conspicuous  place  upon  the  claim,  near  the  center  thereof,  upon 
a  prominent  point,  about  eight  feet  south  of  the  main  traveled 
trail  leading  across  the  mine,  and  that  the  notice  and  diagram 
could  be  seen  at  a  distance  of  more  than  five  hundred  feet. 
The  evidence  upon  this  point  was  considered  satisfactory.  The 
notice  in  the  case  was  published  in  the  Nevada  Transcript,  a 
weekly  paper  published  at  Nevada  City,  California,  by  direction 
of  the  register,  whose  duty,  under  the  law,  it  is  to  publish  the 
notice  "  in  a  newspaper  to  be  by  him  designated  as  published 
nearest  to  said  claim."  "  It  is  true,"  said  the  acting  Commis- 
sioner, "  that  Grass  Valley  is  nearer  to  said  mine  than  Nevada 
City  is.  Both  towns  are  situated,  however,  in  the  same  town- 
ship, and  but  a  few  miles  apart.  By  the  sworn  statement  of 
Samuel  Bethel,  U.  S.  Deputy  Mineral  Surveyor,  residing  in 
Nevada  County,  California,  it  appears  that  the  Transcript  is  the 
official  newspaper  of  Nevada  County,  and  has  a  large  circula- 
tion in  Grass  Valley,  and  that  nearly  all  official  notices  are  pub- 
lished therein.  The  publication  of  notice  in  this  case  is  deemed 
-;iti>factory,  and  for  the  following  reason,  viz:  It  was  published 
in  the  paper  designated  by  the  register,  and  in  a  newspaper  of 
general  circulation  published  near  to  said  mine."  The  objec- 
tion- urged  against  tin'  sufficiency  and  formality  of  posting  and 
publishing  the  notices  were  overruled  by  the  Commissioner, 
but  sustained  by  die  Secretary,  on  appeal,  and  the  doctrine 
enunciated  ;it  the  head  of  this  section  adopted. 

i  Decision  <>f  Secretary,  December  1st,  1S7G,  3  Copp's  Land-owner,  108;  In  ro 
Omaha  Quartz  Mine. 

[,,  re  Omaha  Gold  Quartz  Mine,  I  )ecision  of  Acting  Commissioner,  May  12th, 
1 37fl     iCopp      l/nnl  owner,  ■'*'>, 


§§  114-15  PATENTS    TO   MINERAL    LANDS.  167 

It  is  suggested  that  all  departures  from  the  strict  letter  of  the 
law  in  this  matter  of  publication  are  dangerous,  and  that  a 
strict  compliance  with  the  terms  of  the  act  is  the  only  proper 
course  for  the  register  or  the  applicant.1 

§  114.  Defects  in  the  published  notice. — Where  the  pub- 
lished notice  failed  to  give  the  bearing  from  the  meridian,  and 
left  it  uncertain  whether  that  bearing  should  be  east  or  west, 
but  so  far  as  it  went  agreed  with  the  application,  and  the  notice 
stated  that  the  company  had  filed  in  the  office  a  diagram,  to- 
gether with  a  notice  of  an  intention  to  apply  for  a  survey,  etc., 
and  this  diagram  and  notice  contained  a  true  description,  it  was 
held  that  these  defects  were  not  of  so  material  a  character  as  to 
recpiire  the  published  notice  to  be  set  aside.2 

§  115.  Discrepancies  between  final  survey  and  patent 
and  the  original  application  and  published  notice. — The 

object  of  requiring  notice  to  be  given  by  publication  is  to  inform 
all  parties,  who  may  have  an  adverse  interest,  of  the  premises 
sought  to  be  accpaired,  so  that  they  may  appear  and  assert  their 
rights.  If  the  notice  describes  premises  in  which  others  have 
no  interest,  then  such  other  persons  may  safely  neglect  to  ap- 
pear and  set  up  any  claim.     They  are  bound  by  the  notice,  and 

1  Paper  printed  partly  in  one  district  and  partly  in  another. — There  is,  it  is  held, 
no  objection  or  impropriety  in  a  newspaper  proprietor's  issuing  his  paper  with 
one  side  of  it  entirely  blank,  or  filled  with  matter  iirinted  in  another  city  or 
State.  In  case  one  side  of  the  paper  is  printed,  and  the  paper  is  published  in  a 
given  town  in  the  district,  the  notice  should  be  published  in  the  newspaper 
"  published  nearest  to  such  claim."  Many  of  the  papers  published  in  sparsely 
inhabited  parts  of  the  country  are  printed  on  one  side  in  another  city  or  State, 
while  the  other  side  is  filled  with  local  news  or  advertisements.  The  object  of 
publishing  the  notice  is  to  notify  all  whose  rights  might  be  prejudiced  by  the 
issuance  of  a  patent  as  applied  for,  in  order  that  they  may  present  their 
objections.  This  can  best  bo  accomplished  by  publishing  the  notice  in  a  paper 
published  nearest  the  claim,  and  in  a  paper  of  general  circulation  in  that  vicinity. 
Where  there  were  two  papers  published  in  the  district,  and  each  was  printed  on 
one  side  in  the  city  of  St.  Louis,  Mo.  while  the  other  side  of  each  issue  was 
printed  in  the  district,  the  one  published  nearest  to  the  claim  was  i^ointed  out 
as  the  proper  paper,  and  it  was  held  sufficient,  though  part  of  it  was  published 
out  of  the  State.  Decision  of  Commissioner,  January  4th,  1877,  3  Copp's  Land- 
owner, IOC. 

2  In  re  Flagstaff  Lode,  Decision  Attorney-General,  November  21th,  1871,  Decis- 
ion Secretary  Interior,  December  5th,  1871,  reversing  Decision  Commissioners, 
November  10th,  1871,  on  this  point.     Copp's  U.  S.  Mining  Decisions,  Gl,  70,  71. 


168  PATENTS    TO    MINERAL    LANDS.  §  115 

if  they  neglect  it,  they  must  do  it  at  their  peril ;  but  the  mo- 
ment they  find  that  the  notice  does  not  ask  for  anything  in 
which  they  have  an  interest,  that  moment  they  may  safely 
sleep,  if  they  please.  They  are  not  bound,  and  should  not  be 
bound,  to  look  after  subsequent  proceedings  for  fear  that  there 
may  be  a  subsequent  claim  set  up  to  their  property.  There  can 
be  no  subsequent  claim  that  varies  materially  from  the  original 
one,  which  is  embodied  in  the  application  and  publication.  The 
law  must  be  followed.  The  proceeding  is  a  special  statutory 
proceeding,  and  all  the  provisions  of  the  law  must  be  carefully, 
and,  as  some  authorities  say,  strictly  pursued.  Actual  notice 
without  publication  will  not  answer.  Written  notice  would  not 
be  sufficient,  because  the  statute  says  that  there  must  be  notice 
by  publication. 

If  the  published  notice  described  certain  premises,  none  other 
can  be  afterwards  claimed  and  appropriated  without  a  new  ap- 
plication and  new  published  notice,  and  if  there  should  be  a 
subsequent  effort  to  include  premises  other  than  those  included 
in  the  original  application  and  notice,  and  an  adverse  claimant 
should  appear  and  assert  his  claim  to  the  new  premises  thus 
sought  to  be  appropriated,  and  should  fail  in  maintaining  his 
claim,  either  by  reason  of  not  filing  the  same  in  time  or  for  defect 
in  form,  he  would  not  be  thereby  in  any  worse  position  than  he 
would  have  been  if  he  had  not  appeared  at  all.  In  this  class  of 
cases  consent  cannot  give  jurisdiction.  It  is  a  substantial  com- 
pliance with  the  statute  which  alone  can  give  jurisdiction. 

In  the  case  of  the  Prince  of  Wales  v.  The  Highland  Chief 
Mine,  Utah,1  it  was  claimed  that  the  final  survey  and  patent  of 
the  Highland  Chief  did  not  follow  the  original  application  and 
notice,  and  that  the  claim  was  floated  to  the  eastward  so  as  to 
include  the  discovery  and  works  of  the  Prince  of  Wales. 

The  Highland  Chief  was  located  September  12th,  1870.  In 
the  locution  notice  the  lode  was  described  as  "commencing  at 
tin  discovery  stake  and  running  GOO  feet  in  a  southerly  direc- 
tion, and  GOO  feet  in  a  northerly  direction  therefrom.  *  *  * 
Situate  aboul  five  or  six  hundred  feet  westerly  from  the  Young 

1  Decision  of  Secretary  of  Interior.  April  1st,  1875,  '2  Copp's  Land-owner,  2; 
[bid,  43. 


§  116  PATENTS    TO    MINERAL    LANDS.  169 

Columbia  and  Wandering  Boy  lodes,  Big  Cottonwood  District, 
Utah  Territory." 

A  location  500  or  600  feet  westerly  from  the  Wandering  Boy 
lode,  would  have  excluded  the  premises  in  controversy. 

The  diagram  of  the  Highland  Chief,  attached  to  its  applica- 
tion for  a  patent,  represented  the  Prince  of  Wales  and  Wan- 
dering Boy  lodes  as  lying  to  the  east  of  the  premises  claimed 
by  the  Highland  Chief.  The  application  and  publication  notice 
both  alleged  that,  "  from  discovery  shaft  the  lode  extends  north- 
easterly six  hundred  (600)  feet  and  southwesterly  therefrom 
six  hundred  (600)  feet.  There  were  no  known  adjoining  claim- 
ants at  either  end ;  the  nearest  known  claims  being  the  Prince 
of  Wales  and  Wandering  Boy  Mines,  on  the  easterly  side  of 
said  lode." 

Under  such  an  application  and  published  notice,  it  was  con- 
sidered clear  that  the  applicants  had  no  right  to  go  to  the  east- 
ward, so  as  to  take  in  and  appropriate  the  mines  which  they 
alleged  were  on  the  "  easterly  side  "  of  their  lode. 

The  location,  application,  and  published  notice  of  the  High- 
land Chief  severally  excluded  the  premises  of  the  Prince  of 
Wales  Mine.  It  further  appeared,  from  the  testimony  on  file, 
that  the  owners  of  the  Highland  Chief,  in  the  early  stages  of 
their  proceedings  for  patent,  did  not  intend  to  include  the  Prince 
of  Wales  Mine. 

The  surveyor  who  made  their  original  diagram,  testified 
that  he  was  instructed  to  avoid  the  Prince  of  Wales  Mine, 
and  that  he  did  so.  There  was  nothing  in  the  case  that  indi- 
cated any  intention  on  their  part  to  appropriate  it,  until  after 
they  discovered  that  the  final  survey  might  be  construed  to  in- 
clude it,  and  they  had  succeeded  in  excluding  its  adverse  claim. 
It  was  held  an  error  to  include  it  in  their  patent. 

§  116.  Discrepancies  between  the  published  notice 
and  diagram  filed. — Where  a  notice  as  published  was  consist- 
ent with  the  application  as  far  as  it  went,  but  failed  to  state  the 
courses  and  distances  in  full,  and  omitted  one  of  the  bearings 
from  the  meridian,  yet  it  stated  that  the  company  had,  on  a  cer- 
tain day,  filed  in  the  office  "  a  diagram  of  the  same,  together 
with  a  notice  of  intention  to  apply  for  a  survey,"  etc.,  and  the 


170  PATENTS    TO    MINERAL    LANDS.  §  117 

diagram  and  notice  referred  to  contained  a  true  description  of 
the  premises,  the  maxim  of  id  cerium  est,  quod  certum  reddi 
potest  was  applied,  and  the  reference  to  the  diagram  and  notice 
filed  was  held  to  cure  the  defects  of  the  published  notice. 

It  may  be  questioned  whether  this  doctrine  will  not  be  found 
dangerous  as  a  precedent.  And  as  in  the  particular  case  it  was 
not  necessary  to  declare  such  a  doctrine,  inasmuch  as  the  appli- 
cation was  rejected  on  other  grounds,  it  is  much  in  the  nature  of 
a  dictum.1 

The  notice  is  in  the  nature  of  a  summons,  by  which 
opposing  claimants  are  notified  that  proceedings  have  been 
initiated  under  the  law  to  obtain  a  patent  from  the  Govern- 
ment for  the  land  therein  described  and  specified,  and  that  if 
they  fail  to  answer  or  file  their  adverse  claim  within  the 
period  fixed  by  law,  their  right  to  appear  is  barred ;  and  it  would 
certainly  contravene  all  analogies  of  the  law  to  render  judgment 
in  favor  of  plaintiff  for  premises  other  than  those  for  which 
parties  have  been  summoned  to  defend,  and  then  rule  out  all 
defendants  whose  rights  might  be  thus  jeopardized,  on  the 
ground  that  their  right  to  appear  had  become  barred  by  statu- 
tory limitations.2 

§  117.  Discrepancies  between  the  published  notice, 
the  diagram  and  posted  notice. — In  a  case  which  presented 
the  following  peculiar  state  of  facts,  it  was  held  that  the  notice 
was  sufficient : 

Each  one  of  these  papers  described  the  claim  as  commencing 
"  at  a  point  south  49  deg.  west  from  the  shaft  upon  the  Winne- 
bago Lode,  at  the  distance  of  56£  feet"  ;  the  courses  agreed  in 
all  these;  papers.  The  application  for  patent,  the  notices  posted 
and  published,  all  gave  the  length  of  the  claim  as  1,400  feet. 

The  published  notice,  after  giving  the  length  of  the  claim  as 
1,400  feet,  described  the  premises  as  commencing  50 -V  feet  S. 
40  deg.  W.  from  the  Winnebago  shaft.     Thence  S.  49  deg.  W. 

!  in  re  Flagstaff  Lode,  Decision  of  Secretary,  December 5th,  1871;  Opinion  of 
'nit  Attorney-General,  November  24th,   L871,  reversing  on  that  point  de- 
cision "i  ( lommissioner,  November  lot h,  L871,  Copp's  I :.  8.  Mining  l  decisions,  61, 
70,71.     But  see  Decision  of  Acting  Secretary,  New  Idria  Claim,  [bid.  47, 

-In    re    Flagstulf    Lode-,     Derision   of    Commissioner,    November   10th,    1871; 
Copp's  U.  S.  Mining  Decisions,  61. 


§  118  PATENTS    TO    MINERAL    LANDS.  171 

eighteen  hundred  and  seventy-two  feet.  Thence  S.  51  (leg.  W. 
350  feet.  Thence  S.  54  deg.  W.  87U  feet  to  "  western  bound- 
ary, embracing  a  surface  claim  of  70,000  square  feet,  and  is 
more  fully  described  upon  the  diagrams  and  notices  thereof 
filed  this  day  in  this  office,  and  to  be  posted  upon  the  claim  it- 
self." 

The  sum  of  the  distances  as  given  above,  along  the  vein,  to 
wit :  1872,  350,  and  871^  feet,  was  three  thousand  and  ninety- 
three  and  a  half  feet,  although  in  the  same  notice  it  was  stated 
that  the  claim  was  only  fourteen  hundred  feet  in  length. 

It  was  held  that  no  one  could  have  been  misled  by  this  notice. 
If  in  any  doubt  in  regard  to  the  length  of  the  claim,  a  party 
could  satisfy  himself  upon  this  matter  by  calling  at  the  local 
office ;  for  the  same  notice  which  contained  this  discrepancy 
stated  "  that  the  claim  is  more  fully  described  upon  the  dia- 
grams and  notices  thereof,  filed  this  day  in  this  office."  (The  lo- 
cal land  office.) 

The  diagram  and  notice  posted  in  the  register's  office  were 
posted  on  the  same  sheet  of  paper.  The  sum  of  the  distances 
along  the  vein  as  shown  upon  the  diagrams,  to  wit :  178^,  350, 
and  871  feet,  was  1,399£  feet.  The  notice  stated  that  the  claim 
was  "  1,400  feet  in  length,"  and  gave  the  courses  and  distances 
along  the  vein.  The  sum  of  the  distances  given  in  the  notice, 
to  wit :  187i,  350,  and  871i  feet,  was  fourteen  hundred  and 
nine  feet. 

The  smallest  number  of  feet  called  for  in  either  the  notice, 
diagram,  or  published  notice,  was  thirteen  hundred  and  ninety- 
nine  and  one-half  feet. 

The  claim  as  finally  surveyed  along  the  center  line  was  thir- 
teen hundred  and  ninety-nine,  and  four  hundred  and  seventy- 
five  thousandths  feet,  or  twenty-five  thousandths  of  a  foot  less 
than  the  smallest  number  of  feet  called  for  in  either  of  the 
documents.5 

§  118.  Discrepancies  between  final  survey  and  patent 
and  the  application. — In  the  case  of  the  Prince  of  Wales 
Mine  v.  the  Highland  Chief  Mine,  Utah  Territorv,  it  was  claimed 

1In  re  Equator  Lode,  Decision  of  Commissioner,  October  26th,  1875,  2  Copp's 
Land-owner,  114 


172  PATENTS  TO  MINERAL  LANDS.  §  118 

that  the  patent  for  the  Highland  Chief  did  not  follow  the  final 
survey  in  this :  that  its  final  survey  did  not  include  any  of  the 
surface  ground  of  the  Prince  of  Wales,  while  it  was  conceded 
that  the  patent  did  include  all  the  surface  ground  where  the 
Highland  Chief  crossed  the  Prince  of  Wales  Lode  and  its  dis- 
covery  shaft,  and  many  of  its  valuable  works. 

The  field-notes  of  this  survey,  made  October  5th,  1871,  upon 
this  point  were  as  follows :  "  From  post  N.  2,  I  run  No.  53  deg. 
E.  919  (feet)  to  Prince  of  Wales  claim  1,200  (feet)  ;  leave 
Prince  of  Wales  claim."  And  again  :  "  From  post  No.  4,  I  run 
S.  53  deg.  W.  258  (feet)  to  Prince  of  Wales  claim,  495  (feet)  ; 
leave  Prince  of  Wales  claim." 

The  natural  construction  of  this  language  was  considered  to 
be,  that  the  spaces  between  the  919  and  1,200  feet  on  one  side, 
and  258  and  495  feet  on  the  other  side, were  omitted.  If  they  were, 
the  description  was  correct.  If  there  was  doubt  whether  they 
were  omitted  or  not,  it  was  held  proper  to  explain  that  doubt  by 
the  testimony  of  experts  in  surveying.  A  deputy  United  States 
mineral  surveyor,  who  made  this  survey,  testified  that  he  did 
omit  the  surface  premises  of  the  Prince  of  Wales,  and  that  he 
intended  so  to  do.  The  Secretary  said :  "  He  found  the  Prince 
of  Wales  Company  in  the  actual  occupancy  of  this  surface 
ground.  He  saw  that  it  had  its  discovery  shaft  and  valuable 
mining  works  upon  it ;  and  he  probably  knew  that  the  Prince 
of  Wales  Company  was  the  first  locator,  inasmuch  as  he  was  a 
surveyor,  and  familiar  with  the  mines  in  that  location.  He 
would,  therefore,  very  naturally  pass  over  the  premises,  and 
exclude  them  from  his  survey,  unless  he  had  directions  from 
his  employers  to  do  otherwise.  I  do  not  think  that  he  had  any 
sucb  instructions,  and  my  reason  for  so  thinking  will  appear 
when  I  come  to  consider  another  branch  of  this  subject.  It 
i-  i  me  thai  tin'  surveyor,  in  making  up  the  area  of  his  survey. 
did  not  exclude  from  such  area  the  surface  ground  of  the  Prince 
of  Wales,  amounting  to  24-100  of  an  acre.  It  probably  escaped 
hia  recollection  when  ho  came  to  mala?  his  pint.  In  my  judgment 
the  weight  of  the  evidence  shows  that  the  surface  ground  was 
excluded  from  the  survey.  It  should,  therefore,  have  been 
excluded  from  the  patent,  and  it  was  error  to  include  it."  1 

I  >.  d  lion  Seel  y   [nterior,  April  1st,  1875,  2  Copp'fl  Land-owner,  2;  1  Ibid.  4:3. 


§§  119-21  PATENTS    TO    MINERAL    LANDS.  173 

In  reference  to  the  objections  that  the  location  and  application 
for  patent  and  final  survey  do  not  agree,  it  appears  that  refer- 
ence may  be  had  to  parol  evidence  to  determine  the  location  of 
the  claim.  Where  four  deputy  mineral  surveyors  and  their 
four  attendants  testified  that  the  location,  application  for  patent, 
and  final  survey  were  for  substantially  the  same  premises,  and 
the  testimony  moreover  corroborated  these  statements,  the 
objections  on  this  ground  were  overruled.1 

§  119.   New    survey    pending    another    application. — 

After  an  application  has  been  made  for  patent  for  a  given  min- 
ing claim,  such  claim  is  virtually  withdrawn  from  market;  pend- 
ing the  final  disposition  of  the  case,  and  no  survey,  as  the  basis 
of  a  patent,  should  receive  the  approval  of  the  Surveyor- 
General  for  the  same  tract,  until  the  first  application  has  been 
disposed  of.  Parties  may,  however,  have  the  field  work  of  a 
survey  of  their  claim  made  at  any  time,  and  if  executed  by  a 
duly  appointed  mineral  surveyor,  such,  survey  may  receive  the 
approval  of  the  Surveyor-General  at  any  time  when  no  applica- 
tion for  patent  is  pending  for  the  same  mine,  if  it  is  found  upon 
examination  that  the  survey  is  correct  and  made  in  accordance 
with  law.2 

§  120.  Discrepancies  between  the  survey  and  diagram 
filed. — The  final  survey  must  substantially  follow  the  claim 
described  in  the  application.  In  a  case  where  they  did  not  cor- 
respond, but  there  was  a  variation  in  the  description  of  81°  39' 
the  application  for  patent  was  rejected,  and  the  survey  was  not 
approved,  but  proceedings  were  required  to  be  commenced  de 
novo.3 

§  121.  Discrepancies  between  the  survey  and  notice 
— Matters  of  description. — Where,  upon  comparing  the  final 

1  In  re  Wandering  Boy  Lode,  Decision  Secretary,  April  1st,  1S75,  2  Copp's 
Land-owner,  2. 

2  In  re  Crown  Point  Lode,  Decision  of  Commissioner,  November  5th,  1874,  1 
Copp's  Land-owner,  133. 

3  In  re  Flagstaff  Lode,  Decision  of  Secretary,  December  5th,  1871 ;  Opinion  of 
Assistant  Attorney-General  U.  S.,  November  24th,  1871,  affirming  on  this  point  a 
decision  of  Commissioner,  November  10th,  1871,  Copp's  IT.  S.  Mining  Decisions, 
61,  70,  71. 


174  PATENTS    TO    MINERAL    LANDS.  §  122 

survey  with  the  original  notice  and  diagram,  it  is  found  that  a 
discrepancy  exists  between  them,  as,  for  instance,  a  difference  of 
ten  degrees  and  twenty  minutes  between  the  tract  of  land  for 
which  the  applicants  gave  legal  notice  that  they  would  apply 
for  a  patent,  and  the  tract  which  they  had  surveyed  and  plat- 
ted by  the  United  States  Surveyor ;  to  proceed  to  grant  title 
on  the  survey  would  be  equivalent  to  issuing  a  patent  for  a 
claim  for  which  no  notice  had  ever  been  given,  and  is  unauthor- 
ized by  the  mining  acts.  In  such  cases  no  patent  will  be  issued 
until  the  plat  and  field-notes  of  a  corrected  survey  are  received, 
describing  the  premises  substantially  as  set  forth  in  the  diagram 
and  notice.  The  Surveyor-General  will  be  ordered  to  direct  his 
deputy  who  executed  the  survey  to  proceed  to  correctly  survey 
the  claim,  without  additional  charge  to  the  applicant.1 

§  122.  Errors  in  survey. — In  the  case  of  the  Philadelphia 
Lode  v.  The  Pride  of  the  West  Lode,1  an  error  was  made  in 
the  survey  made  as  the  basis  of  the  last  recorded  notice  of  lo- 
cation, the  posts  at  the  southerly  end  of  the  claim  having  been 
placed  about  three  feet  too  far  south,  the  course  between  the 
posts  at  the  angles  on  the  easterly  and  westerly  sides,  and  the 
posts  established  at  the  southeasterly  and  southwesterly  corners 
of  the  claim,  given  as  S.  6  deg.  30  min.  W.,  instead  of  S.  6  deg. 
42  min.  W.,  the  actual  course  between  the  points.  With  these 
exceptions  the  description  given  in  the  plat  and  field-notes  agreed 
with  the  description  contained  in  the  last  recorded  notice  of  the 
location.  The  principle  that  courses  and  distances  must  give 
way  when  in  conflict  with  fixed  objects  and  monuments  was  ap- 
plied.2 

In  the  same  case  it  was  also  urged  that,  as  the  discovery  of 
the  Philadelphia  Lode  was  in  reality  outside  of  the  boundaries 
of  the  Pride  of  the  West  claim  instead  of  within  such  bounda- 
ries as  represented  upon  the  plat,  the  survey  was  erroneous. 

It  was  not  claimed  that  the  courses  and  distances  between  the 

1  Application  of  International  Mining  and  Exchange  Company;   In  re  Her- 

r-nlc  t  Loik,  April  l!)tli,  1372,  Decision  of  Commissioner,  Copp's  U.  S.  Mining 
Decisions,  90. 

-  Ix-cision  nf  Commissioner,  August  28th,  1870,  3  Copp's  Land-owner,  82;  De- 
cision oi  June  null,  J st« ;. 


§  122  PATENTS    TO    MINERAL    LANDS.  175 

several  posts  described  in  the  plat  and  field-notes  of  the  Pride 
of  the  West  were  erroneously  given. 

The  Commissioner  said  :  "  The  fact  that  the  discovery  shaft 
of  the  Philadelphia  Lode  is  represented  upon  said  plat  as 
lying  within  the  exterior  boundaries  of  the  Pride  of  the 
West  survey,  while  in  reality  it  lies  five  feet  to  the  east  of  the 
easterly  boundary  of  said  survey,  will  not  prejudice  the  right  of 
the  Philadelphia  claimants  in  any  respect ;  as  the  patents  in  all 
cases  of  applications  arising  under  the  mining  act  follow  the  de- 
scription of  the  premises  as  given  in  the  field-notes  of  survey 
thereof. 

"  It  is  urged  that  no  patents  can  issue  upon  said  application, 
as  the  end  lines  of  the  claim  as  surveyed  are  not  parallel  to 
each  other,  as  required  by  the  last  clause  of  the  fifth  section 
of  the  Act  of  May  10th,  1872. 

"  The  course  along  the  northerly  end  line  of  said  survey  is 
N.  69  deg.  80  min.  E.,  while  the  course  along  the  southerly  line 
is  N.  86  deg.  18  min.  W.  These  end  lines  are  perpendicular  to 
the  side  lines  but  are  not  parallel  to  each  other,  there  being  an 
angle  in  the  side  lines  between  the  northerly  and  southerly  ends 
thereof.  It  might  be  questioned  whether  there  has  been  a  fail- 
ure to  comply  with  the  spirit  and  intent  of  that  provision  of 
said  section  which  requires  that  '  the  end  lines  of  each  claim 
shall  be  parallel  to  each  other.'  But  as  a  claimant  may  at  any 
time  abandon  the  whole  or  any  part  of  his  application  for  pat- 
ent, a  strict  compliance  with  the  letter  of  the  law  in  regard  to 
end  lines  may  be  secured  by  the  applicants  filing  an  abandon- 
ment to  so  much  of  the  premises  embraced  by  their  application 
as  may  be  necessary  to  render  the  end  lines  parallel,  and  having 
an  amended  survey  filed. 

"  Should  such  abandonment  be  filed,  the  rights  of  no  parties 
other  than  the  applicants  would  be  affected  thereby,  as  there  is 
no  adverse  claimant  to  that  portion  of  the  premises  embraced 
in  said  survey  which  it  would  be  necessary  to  abandon  to  make 
the  end  lines  parallel." 

Errors  in  survey. — Where  any  material  error  occurs  in  the 
survey,  so  as  to  mislead  parties  who  may  have  the  right  to  file 
adversely,  or  not  to  apprise  them  of  the  exact  boundaries,  ex- 
tent, nature  and  location  of  the  claim,  the  applicant  must  com- 


176  PATENTS    TO    MINERAL    LANDS.  §§  123-4 

mence  de  novo  by  filing  with  the  local  land  officers  a  plat  and 
field-notes  "  showing  accurately  the  boundaries  of  the  claim," 
and  publish  a  notice  accurately  describing  the  claim ;  for  the 
patent  when  issued  must  conform  to  and  agree  with  the  descrip- 
tion given  in  the  plat  and  field-notes.1 

§  123.  When  applications  for  patent  will  be  rejected 
— Errors  and  defects  in  patent  and  application. — If  the 

record  title  is  found  defective  the  application  will  be  rejected, 
and  so  if  a  previous  application  has  been  made  for  the  same 
ground  and  withdrawn,  pending  a  suit  in  court  commenced  by 
adverse  claimants,  it  will  be  denied.2 

Recalling  patent. — After  a  patent  has  once  been  issued,  it  is 
contrary  to  the  fixed  policy  of  the  Department  to  recall  the 
same,  unless  it  be  shown  that  an  error  has  been  committed  in 
the  description  of  the  tract,  or  a  mistake  made  in  the  name  of 
patentee.3 

§  124.  Sworn  statement. — It  is  sufficient  if  the  sworn 
statement  of  all  the  applicants  shows  that  they  have  the  possess- 
ory right  to  the  claim  by  virtue  of  a  compliance  by  themselves 
and  their  grantors  with  the  mining  laws.  If  it  be  alleged  that 
a  notice  was  posted  at  the  point  of  discovery  of  the  lode,  giving 
the  names  of  claimants,  number  of  feet  claimed,  and  the  gen- 
eral direction  of  the  premises  claimed,  that  the  notice  was  re- 
corded, and  that  the  amount  of  labor  required  by  law  has  been 
performed,  and  the  claim  is  described  in  the  location  notice  with 
such  a  degree  of  accuracy  that  parties  can  easily  ascertain  its 
exact  locality,  it  is  held  that  not  giving  the  exact  course  and 
distance  between  (lie  lode  and  a  natural  or  artificial  monument 
is  not  fatal  to  the  application,  where  the  local  law  provided 
that  in  making  ;i  record  of  location  of  any  claim  "the  same 
shall  lie  definitely  described  with  reference  to  some  natural  or 
artificial  monument."  l 

i Decision  oi  Com.,  April  ITtli,  1st::.  Copp's  U.  S,  Mining  I  >ecisions,  193. 
-  Brown  v.  Lewis,  in  re  Cascade  Mine,  l  Copp's  Land-owner,  50. 

-':  Iii  re  Washington  Lod<\  Decision  Acting  Commissioner,  April  5th,  1872, 
Copp's  1  ,  8.  Mining  Decisions,  88. 

Mn  re  King  of  the  W<  I  Lode,  City  Rock  and  Qtah  Claimants  v.  Pitts,  1 
Oopp'n  Land-owner,  L46;  Decision  of  Commissioner,  I >ccembcr  14th,  1874. 


§§  125-6  PATENTS    TO    MINERAL    LANDS.  177 

§  125.   Approval  of  survey — Jurisdiction  of  Surveyor- 
General. — The  approval  of  a  survey  of  a  mining  claim  by  the 
Surveyor-General  is  merely  an  indorsement  thereon,  over  his 
own  signature,  that  the  survey  is  correct,  and  that  it  has  been 
made  in  accordance  with  law  and  instructions,  and  until  he  has 
actually  affixed  his  signature  approving  such  survey,  no  appeal 
lies  to  the  land  office,  as  an  appeal  cannot  lie   from   a  proposed 
action   or  decision.      If,  however,  a  protest  is  filed  against  a 
given  survey,  the  plat  and  field-notes  of  survey  are  to  be  trans- 
mitted to  the  General  Land  Office,  together  with  all  the  papers 
which  may  have  been  filed  with  the  case,  that  such  action  may 
be  taken  as  the  law  and  the  facts  may  warrant.     The  Surveyor- 
General  has  no  jurisdiction  in  the  matter  of  deciding  the  respect- 
ive rights  of  parties  in  cases  of  conflicting  claims.     Each  ap- 
plicant for  a  survey  is  entitled  to  a  survey  of  the  entire  mining 
claim  as  located,  if  held  by  him  in  accordance  with  the  local 
laws  and  Congressional  enactments.     If,  in  running  the  exterior 
boundaries  of  a  claim,  it  is  found  that  two  surveys  conflict,  the 
plats   and   field-notes   should  show  the  extent   of  the   conflict, 
giving  the  area  which  is  embraced  in  both  surveys,  and  also  the 
distances   from  the  established   corners   at  which   the   exterior 
boundaries  of  the   respective  surveys  intersect  each  other.     If 
pai'ties   desire   to   protect  their  interests,  which  would  be  ad- 
versely affected  by  the  issuance  of  a  patent  for  the  claim  as 
surveyed,  they  must  file  an  adverse  claim  against  such  applica- 
tion in  the  manner  and  form  prescribed  by  the  statute,  for  in  no 
other  way  can  their  alleged  adverse  rights  be  adjusted.1 

§  126.   Proof  of  citizenship  only  required  of  applicants. 

— Where  it  was  alleged  that  the  patent  issued  without  proof 
that  the  original  locators  were  citizens  of  the  United  States,  it 
was  not  claimed  that  there  was  proof  that  the  applicants  for 
the  patent  were  not  citizens.  It  has  not  been  the  practice  of 
the  Land  Office  to  require  proof  that  the  original  locators  were 
citizens,  except  in  those  cases  where  they  were  applicants  for 
patent.     It  will  not  be  presumed  that  they  were  not  citizens  in 

1  In  re  Crown  Point  Lode,  Decision  of  Commissioner,  November  5th,  1874,  1 
Copp's  Land-owner,  133. 

W.  C— 12. 


178  PATENTS    TO    MINERAL    LANES.  §  127 

the  absence  of  an  allegation  or  objection  to  mat  effect,  before 
the  issuing  of  patent.  After  patent  has  actually  issued,  it  is 
held  too  late  to  make  such  an  objection.1 

§  127.   Miscellaneous. 

Bona  fide  application  for  patent. — In  the  absence  of  any  ad- 
verse claim,  a  bona  fide  application  for  patent  under  the  Act  of 
1866  was  considered  such  an  appropriation  of  the  premises 
embraced  therein  as  takes  them  out  of  the  application  of  the 
local  laws.2 

A  portion  of  a  claim,  uncontested,  may  be  patented,  the  par- 
ties having  complied  with  the  requirements  of  the  law.3 

Exemplified  copies  of  patents  are  furnished  only  to  parties  in 
interest.4 

Assignment  of  patents. — There  are  no  rules  or  regulations 
governing  the  assignment  of  patents  issued  by  the  Land  Office. 
Such  patents  are  conveyances  of  the  title  to  certain  lands,  pre- 
viously existing  in  the  United  States,  and  if  these  parties  de- 
sire to  transfer  to  others  the  title  thus  acquired,  they  must  con- 
form to  the  laws  of  the  locus  rei  sitm  relating  to  the  convey- 
ance of  realty.5 

Refunding  purchase-money. — The  money  paid  for  a  mining 
claim  will  not  be  refunded  when  a  decision  is  made  reducing 
the  extent  of  a  claim,  except  for  so  much  of  the  superficies  as 
is  not  included  in  the  reserves  necessary  to  cause  the  claim  to 
conform  to  the  local  laws  and  customs  of  the  miners.  When, 
however,  a  decision  is  rendered  by  which  a  claim,  erroneously 
extended,  is  reduced  in  size,  the  purchase-money  will  be  re- 
turned, to  the  extent  necessary  to  make  the  payment  meet  the 
requirements  of  the  law.0 

1  Kempton  <':ise.  In  re  Wandering  Boy  Lodo,  Decision  of  Secretary,  April  1st, 
1875,  2  Copp's  Land-owner,  2. 

-  Daney  <;.  &  8.  M.  Co,  ''.  Sapphire  M.  Co.,  Decision  Secretary,  June  29th,  1875, 
•z  <  lopp'a  Land-owner,  <;(>,  f>7. 

8 Decision  of  Commissioner,  February  27th,  1872,  Copp's  U.  S.  Mining  Decis- 
ion J,  78. 

*  lii  re  Daniel  Peters  Lode,  Decision  of  Commissi sr,  January  2d,  L872,  Copp's 

r.  s.  Mining  Decisions,  70. 

>Dei     on  Commissioner,  January  21st,  1869,  Copp's  TJ.  S.  Mining  Decisions,  L8. 

8Deci  "ii  Commissioner,  September  L4th,  1870,  Copp's  U.  S.  Mining  Decisions, 
32,  Sec,  generally,  as  to  nature  of  United  States  patents,  and  the  title  conveyed, 


§  127  PATENTS    TO    MINERAL    LANDS.  179 

Patterson  v.  Tatum,  3  Sawyer  C.  G.  164;  Wilcox  v.  Jackson,  13  Pet.  490;  Bagnell 
v.  Broderick,  13  Pet.  430;  Hooper  v.  Scheimer,  23  How.  235;  Johnson  v.  Towsley, 
13  Wall.  72;  Samson  v.  Smiley,  Ibid.  91;  Davenport  v.  Lamb,  13  Wall.  418;  White 
v.  Cannon,  G  Wall.  443;  Galloways.  Finley,  12  Pet.  2G4;  Dredge  v.  Forsyth,  2 
Black,  563;  Schedda  v.  Sawyer,  4  McL.  181;  Ballance  v.  Forsyth,  13  How.  18; 
S.  C.  6  McL.  562;  Gregg  v.  Tesson,  1  Black,  150;  Mann  v.  Wilson,  23  How.  458; 
Lafayette's  Heirs  v.  Kenton,  18  How.  197;  Stoddard  v.  Chambers,  2  How.  285; 
Fieldr.  Seabury,  19  How.  223,  333;  Minter  v.  Crommeline.  18  How.  87;  U.  S.  v. 
Arredondo,  6  Pet.  736;  New  Orleans  r.  De  Armas,  9  Pet.  223;  New  Orleans  v.  U.  S. 
10  Pet.  6G2;  Nelson  v.  Moon,  3  McL.  L.  319;  Reichart  v.  Felps,  6  Wall.  160;  Stark 
v.  Starr,  G  Wall.  402;  Brush  v.  Ware,  15  Pet.  93;  S.  C.  1  McL.  533;  Morgan  v. 
Curtenius,  4  McL.  36G;  Beard  v.  Federy.  3  Wall.  479;  U.  S.  v.  Hughes,  11  How. 
552;  S.  C.  4  Wall.  232;  IT.  S.  v.  Stone,  2  Wall.  526;  Hoofnagle  v.  Anderson,  7 
Wheat.  212;  McArthur  v.  Browder,  4  Wheat.  488.  As  to  sales  of  public  lands, 
generally,  and  the  power  of  Congress  to  sell,  see  U.  S.  v.  Gratiot,  14  Pet.  526; 
S.  C.  1  McL.  454;  Oliver  v.  Piatt,  3  How.  333;  S.  C.  1  McL.  295;  Wilcox  v.  Jack- 
son, 13  Pet.  498;  Miller  v.  Kerr,  7  Wheat.  1;  Root  v.  Shields,  1  Wool.  340. 


180  ADVERSE    CLAIMS.  §  128 


CHAPTER   IX. 

ADVERSE  CLAIMS— PROCEEDINGS  EST  COURT. 

§  128.  Adverse  claims. 

§  129.  Adverse  claims  under  Act  ui  1866. 

§  130.  Adverse  claims  under  statutes  now  in  force — details  of  procedure. 

§  131.  "Who  may  file. 

§  132.  Verification  of  adverse  claim. 

§  133.  Verification  of  adverse  claims  by  agents  of  companies. 

§  1.34.  Time  of  filing. 

§  135.  Commencing  second  suit — Dismissal  of  former  suit. 

§  136.  "What  constitutes  an  adverse  claim. 

§  137.  Necessary  allegations. 

§  138.  What  adverse  claimant  must  show. 

§  139.  Form  of  adverse  claim. 

§  140.  Prima  facie  adverse  claim. 

§  141.  Sufficient  tiling. 

§  142.  Adverse  claim  must  be  accompanied  by  certified  survey. 

§  143.  The  object  of  giving  notice  by  publication. 

§  144.  Jurisdiction  of  the  Land  Office  over  adverse  claims. 

§  145.  Notice  of  suit. 

§  146.  Authority  of  register  to  dismiss. 

§  147.  Proceedings  in  Court — proper  party  to  commence  suit. 

§  148.  Possession  as  equivalent  to  adverse  claim — parties  to  institute  suit. 

§  149.  Wha1  are  I  lourts  of  competent  jurisdiction. 

§  150.  Contests  in  Court — jurisdiction. 

§  151.  Jurisdiction  of  State  Courts. 

§  152.  Transfer  of  causes  to  United  States  Courts — jurisdiction  of  mining  causes. 

§  153.  Cancelation  of  entry  pending  suit. 

5  l.ii.  Stay  of  proceedings. 

§  155.  Filing  consent  1o  judgment. 

Laches  in  bringing  suit. 

§  157.  Prosecution  of  suits— reasonable  diligence. 

§  168.  Abandonment  of  portion  of  adverse  claim. 

S  159.  Abandonment  of  surface  ground. 

L60  Cross-applications— delay, 

5    161.  Fees  on  filing  adverse  claim. 

{  L62,  Miscellaneous. 

§  128.  Adverse  claims. — Section  2326  of  the  Revised 
Statutes  of  the  United  States  reads  as  follows:  "Where  an 
adverse  claim  ie  filed  during  the  period  of  publication,  it  shall 
be  upon  oath  of   the  person  or  persons  making  the  same,  and 


§  128  ADVERSE    CLAIMS.  181 

shall  show  the  nature,  boundaries,  and  extent  of  such  adverse 
claim,  and  all  proceedings,  except  the  publication  of  notice 
and  making  and  filing  of  the  affidavit  thereof,  shall  be  stayed 
until  the  controversy  shall  have  been  settled  or  decided  by 
a  Court  of  competent  jurisdiction,  or  the  adverse  claim  waived. 
It  shall  be  the  duty  of  the  adverse  claimant,  within  thirty 
days  after  filing  his  claim,  to  commence  proceedings  in  a 
Court  of  competent  jurisdiction,  to  determine  the  question 
of  the  right  of  possession,  and  prosecute  the  same  with  rea- 
sonable diligence  to  final  judgment;  and  a  failure  so  to  do 
shall  be  a  waiver  of  his  adverse  claim.  After  such  judgment 
shall  have  been  rendered,  the  party  entitled  to  the  possession 
of  the  claim,  or  any  portion  thereof,  may,  without  giving 
further  notice,  file  a  certified  copy  of  the  judgment-roll  with 
the  register  of  the  Land  Office,  together  with  the  certificate  of 
the  Surveyor-General  that  the  requisite  amount  of  labor  has 
been  expended  or  improvements  made  thereon,  and  the  descrip- 
tion required  in  other  cases,  and  shall  pay  to  the  receiver  five 
dollars  per  acre  for  his  claim,  together  with  the  proper  fees, 
whereupon  the  whole  proceedings  and  the  judgment  roll  shall 
be  certified  by  the  register  to  the  Commissioner  of  the  General 
Land  Office,  and  a  patent  shall  issue  thereon  for  the  claim,  or 
such  portion  thereof  as  the  applicant  shall  appear,  from  the 
decision  of  the  Court,  to  rightly  possess.  If  it  appears,  from 
the  decision  of  the  Court,  that  several  parties  are  entitled  to 
separate  and  different  portions  of  the  claim,  each  party  may 
pay  for  his  portion  of  the  claim,  with  the  proper  fees,  and  file 
the  certificate  and  description  by  the  Surveyor-General,  where- 
upon the  register  shall  certify  the  proceedings  and  judgment 
roll  to  the  Commissioner  of  the  General  Land  Office,  as  in  the 
preceding  case,  and  patents  shall  issue  to  the  several  parties 
according  to  their  respective  rights.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  the  title  conveyed 
by  a  patent  for  a  mining  claim  to  any  person  whatever.1 

1  Sec.  7,  Act  1872,  17  U.  S.  Stats.  93,  omitted  the  clause  relating  to  proofs  of 
citizenship,  which  is  incorporated  in  Sec.  2321  Rev.  Stats. ;  otherwise  the  sec- 
tions are  identical. 

Sec.  (J  of  the  Act  of  July  26th,  1866,  14  U.  S.  Stats.  252,  was  as  follows:  That 
whenever  any  adverse  claimants  to  any  mine,  located  and  claimed  as  aforesaid, 
shall  appear  before  the  approval  of  the  survey,  as  provided  in  the  third  section 


182  ADVERSE    CLAIMS.  §  129 

§  129.  Adverse  claims  under  Act  of  1866. — Under  the 
Act  of  1866  the  opposing  claimant,  was  required  to  file  his 
adverse  notice  with  the  register  and  receiver ;  and,  in  order  that 
it  might  appear  to  those  officers  whether  or  not  the  adverse 
claim  was  such  a  one  as  was  contemplated  by  the  sixth  section, 
they  required  the  opposing  claimant  to  present  his  affidavit, 
setting  out  in  detail  the  nature  of  his  adverse  claim,  stating 
when  and  how  it  originated — whether  by  purchase  or  by  loca- 
tion— the  names  of  all  the  original  locators,  with  a  certified 
copy  of  the  original  location  from  the  mining  recorder's  office ; 
and  if  he  claimed  as  a  purchaser,  an  abstract  of  title,  certified 
by  the  recorder,  tracing  the  title  to  the  possession  from  the 
original  locators  to  the  claimant,  should  be  furnished.  Such 
affidavit  and  accompanying  papers  were  to  be  carefully  examined 
by  the  register  and  receiver,  and  if,  in  their  judgment,  an  ad- 
verse claim  was  made  out,  they  suspended  all  further  action  on 
the  application  for  patent,  until  an  adjustment  was  had  in  the 
local  courts  ;  if  they  found  otherwise,  they  refused  to  suspend, 
but  in  either  event  the  papers  filed,  both  by  the  applicant  for 
patent  and  the  adverse  claimant,  were  referred  to  the  General 
Land  Office  for  review,  where  the  decision  of  the  register  and 
receiver  was  either  affirmed  or  set  aside,  and  all  parties  in 
interest  notified  of  the  result.1 

In  the  case  of  placer  claims  upon  surveyed  lands,  where  no 
survey  was  required,  the  adverse  claimant  Avas  required  to 
appear  before  the  entry  was  made  ;  but  if,  from  any  cause, 
such  adverse  claimant  was  unable  to  appear  within  the  time 
specified,  but  appeared  before  the  patent  was  issued,  the  register 
nevertheless  took  his  sworn  statement,  and  transmitted  it  to  the 
( reneral  Land  Office,  for  such  action  as  the  Commissioner  might 
deem  proper.  When  the  parties  were  notified  that  an  adverse 
claim  was  made  out,  it  became  the  duty  of  the  adverse  claimant 
immediately  to  commence  action  in  Court,  and  to  prosecute  the 
same  to  final  judgment  or  decree,  by  which  the  further  proceed- 
ings of  tli**  office  were  governed.     In  .default  of  such  suit  being 

of  tliis  act,  all  proceedings  shall  be  stayed  until  a  final  settlement  and  adjudica- 
tion in  the  Courts  of  competent   jurisdiction  <>f  the  rights  of  possession  to  such 
tlaim,  when  a  patent  may  issue  us  in  other  ('.uses.     (Sees  Sec.  2325  Rev.  Stats.) 
1  [nstructions  August  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  25i). 


§  130  ADVERSE    CLAIMS.  183 

instituted  within  a  reasonable  time,  the  original  claim  was  dealt 
with  as  if  no  adverse  interest  had  been  asserted.  Every  facility 
was  to  be  afforded  to  parties  desiring  to  avail  themselves  of  the 
privileges  accorded  by  these  enactments,  and  completed  cases 
were  to  be  promptly  reported  to  the  General  Land  Office. 
Monthly  returns  were  to  be  made  of  all  entries  of  lode  and  placer 
claims,  with  details  specifically  showing  what  lands  were  en- 
tered.1 

§  130.  Adverse  claims  under  statutes  now  in  force — 
Details  of  procedure. — An  adverse  mining  claim  must  be  filed 
with  the  register  of  the  same  land  office  with  whom  the  appli- 
cation for  patent  was  filed,  or  in  his  absence,  with  the  receiver, 
and  within  the  sixty  days'  period  of  newspaper  publication  of 
notice.  The  adverse  notice  must  be  duly  sworn  to  by  the  per- 
son or  persons  making  the  same  before  an  officer  authorized  to 
administer  oaths  within  the  land  district,  or  before  the  register 
and  receiver  :  it  must  fully  set  forth  the  nature  and  extent'  of 
the  interference  or  conflict  ;  whether  the  adverse  party  claims 
as  a  purchaser  for  valuable  consideration  or  as  a  locator  ;  if 
the  former,  a  certified  copy  of  the  original  location,  the  original 
conveyance,  a  duly  certified  copy  thereof,  or  an  abstract  of  title 
from  the  office  of  the  proper  recorder,  should  be  furnished,  or  if 
the  transaction  was  a  verbal  one,  he  will  narrate  the  circumstan- 
ces attending  the  purchase,  the  date  thereof,  and  the  amount  paid, 
which  facts  should  be  supported  by  the  affidavits  of  one  or  more 
witnesses,  if  any  were  present  at  the  time,  and  if  he  claims  as  a 
locator  he  must  file  a  duly  certified  copy  of  the  location  from 
the  office  of  the  proper  recorder.2 

In  order  that  the  "  boundaries  "  and  "  extent  "  of  the  claim 
may  be  shown,  it  is  incumbent  upon  the  adverse  claimant  to  file 
a  plat  showing  his  claim,  and  its  relative  situation  or  position 
with  the  one  against  which  he  claims,  and  the  extent  of  the 
conflict.  This  plat  must  be  made  from  an  actual  survey  by  a 
United  States  Deputy  Surveyor,  Avho  will  officially  certify 
thereon  to  its  correctness  ;  and  in  addition  there  must  be  at- 
tached to  such  plat  of  survey  a  certificate  or  sworn  statement 

1  Instructions  June  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  259. 

2  Instructions  June  10th,  1872,  Subdivisions  47,  48;  February  1st,  1877,  44-52. 


184  ADVERSE    CLAIMS.  §  131 

by  the  surveyor  as  to  the  approximate  value  of  the  labor  per- 
formed or  improvements  made  upon  the  claim  by  the  adverse 
party  or  his  predecessors  in  interest,  and  the  plat  must  indicate 
the  position  of  any  shafts,  tunnels,  or  other  improvements,  if 
any  such  exist  upon  the  claim  of  the  party  opposing  the  appli- 
cation, and  by  which  party  said  improvements  were  made.1 

Upon  the  foregoing  being  filed  within  the  sixty  days  as  afore- 
said, the  register,  or  in  his  absence,  the  receiver,  will  give  notice 
in  writing  to  both  parties  to  the  contest  that  such  adverse  claim 
has  been  filed,  informing  them  that  the  party  who  filed  the  ad- 
verse claim  will  be  required,  within  thirty  days  from  the  date  of 
such  filing,  to  commence  proceedings  in  a  Court  of  competent 
jurisdiction,  to  determine  the  question  of  right  of  possession, 
and  to  prosecute  the  same  with  reasonable  diligence  to  final 
judgment ;  and  that  should  such  adverse  claimant  fail  to  do  so, 
his  adverse  claim  will  be  considered  waived,  and  the  application 
for  patent  will  be  allowed  to  proceed  upon  its  merits.2 

"When  an  adverse  claim  is  filed,  the  register  or  receiver  will 
indorse  upon  the  same  the  precise  date  of  filing,  and  preserve  a 
record  of  the  date  of  notifications  issued  thereon  ;  and  there- 
after all  proceedings  upon  the  application  for  patent  will  be  sus- 
pended, with  the  exception  of  the  completion  of  the  publication 
and  posting  of  notices  and  plat,  and  the  filing  of  the  necessary 
proof  thereof,  until  the  controversy  shall  have  been  adjudicated 
in  Court,  or  the  adverse  claim  waived  or  withdrawn.  The  stat- 
ute itself  fully  provides  for  proceedings  after  rendition  of  judg- 
ment by  the  Court.8 

§  131.  Who  may  file. — If  claimants  are  in  fact  incorporated 
as  ji  company,  their  united  interests  constituting  but  one  claim 
patentable  on  the  required  expenditure  in  labor  and  improve- 
ments, there  is  no  question  as  to  the  right  of  such  company 
to  appear  by  an  authorized  agent  or  attorney,  and  no  reason  ap- 
pears why  any  one  of  the  several  members  may  not  be  thus 
authorized.     This  is  the  usual  practice  in  other  States  and  Tcr- 

i  [nstrnctions  June  10th,  1872,  Subdivision  49,  February  1st,  1877,  44-52;  Decis- 
ion of  Becretary,  i  n  re  Webster  Lode,  2  < '.  L.  <  >.  31. 

a  Instructions  June  LOth,  1872,  Subdivision  60;  February  1st,  1877,44-52. 

'■•  instructions  June  10th,  1872,  Subdivision  94,  February  1st,  1877,  44-52;  Decis- 
ion oi  Secretary,  La  re  Webster  Lode,  2  C.  L.  O.  81. 


§  132  ADVERSE    CLAIMS.  185 

ritorics,  and  as  the  individuals  composing  these  corporations 
are  often  widely  scattered,  a  different  rule  would  frequently 
render  proceedings  under  the  mining  act  impracticable.  Where 
the  interest  is  of  such  a  mutual  character  as  in  the  case 
of  these  companies,  there  would  seem  to  be  no  occasion  for  re- 
quiring the  personal  appearance  at  the  local  office  of  each  indi- 
vidual of  a  company.  One  member  of  a  company  therefore 
may  file  an  adverse  claim  in  behalf  of  the  whole,  and  each  mem- 
ber is  not  required  to  appear  before  the  register  and  receiver.1 

§  132.  Verification  of  adverse  claims.  —  The  adverse 
claim  must  be  "  upon  oath  of  the  person  or  persons  making  the 
same."  An  officer  authorized  to  administer  oaths  within  the 
land  district  may  administer  an  oath  to  an  adverse  claim  outside 
of  the  district  but  inside  of  the  limits  of  his  jurisdiction,  if  the 
latter  extends  within  the  land  district  where  the  claims  are  sit- 
uated. 

Where  the  facts  were  that  the  adverse  claim  was  sworn  to 
before  a  deputy  clerk  of  the  District  Court  in  and  for  the 
county  ;  and  although  there  was  no  testimony  showing  the  exact 
part  of  the  county  where  the  oath  was  administered,  it  was 
shown  that  the  office  and  residence  of  the  clerk  were  in  a  town 
in  the  county,  and  that  it  was  probable  that  the  affidavit  was 
made  at  that  place.  The  line  between  the  district  where  the 
mine  was  situate  and  the  district  where  the  town  was  located 
ran  so  as  to  leave  the  town  in  one  district  and  the  mine  in  the 
other.  The  affidavit  being  administered  in  the  district  where 
the  town  was  situate,  it  was  held  a  sufficient  compliance  with 
Sec.  2335  of  the  Be  vised  Statutes,  it  being  within  the  jurisdic- 
tion of  the  clerk.2 

An  adverse  claim  will  be  rejected  if  not  sworn  to  before  an  of- 
ficer authorized  to  administer  oaths  within  the  land  district  where 
the  claim  is  situated.2  A  protest  verified  before  a  commissioner 
of  deeds  for  the  State,  but  residing  elsewhere,  does  not  comply 

1  Decision  of  Commissioner,  January  28th,  1869,  Copp's  U.  S.  Mining  Decis- 
ions, 19. 

2  Corning  Tunnel  M.  Co.  v.  Pell,  In  re  Slide  Lode,  Decision  of  Secretary,  Feb- 
ruary 17th,  1877,  3  C.  L.  O.  195,  reversing  S.  C.  Decision  Commissioner,  3  C.  L.  O, 
130,  and  distinguishing  the  case  from  that  of  Dardanelles  Mining  Co.  v.  Cal.  M. 
Co.,  Copp's  Mining  Decisions,  1G1,  Infra. 


186  ADVERSE    CLAIMS.  §  133 

with  the  act.  The  instructions  issued  under  the  Act  of  1866 
required  all  affidavits  to  be  made  before  the  register  and  re- 
ceiver, but  the  Acts  of  1870  and  1872  authorize  them  to  be 
made  before  any  officer  within  the  land  district  who  has  author- 
ity to  administer  oaths.  The  authority  was  limited  to  the  dis- 
trict, so  as  to  make  it  practicable  to  punish  those  guilty  of  per- 
jury in  making  the  oath.1 

The  jurat  to  the  adverse  claim  must  be  made  by  the  party 
and  cannot  be  made  by  an  attorney.  The  law  does  not  provide 
that  the  adverse  claim  shall  be  verified  upon  the  oath  of  an 
agent  or  attorney.  Without  statutory  authority  an  attorney 
cannot  make  the  oath  for  his  client.  An  adverse  claim,  there- 
fore, verified  by  an  attorney,  is  not  sufficiently  verified  under 
the  act,  and  will  be  rejected. 

But  one  of  the  adverse  claimants  may  make  an  affidavit  as 
the  representative  of  the  others  making  the  same  claim.2 

Where  several  parties  unite  in  the  adverse  claim,  the  jurat  is 
sufficient  if  made  by  one  of  them. 

The  filing  of  an  adverse  claim  with  the  register  is  a  suffi- 
cient filing  under  the  act.  The  official  indorsement  of  the  filing; 
is  prima  facie  evidence  that  they  were  filed  as  of  that  date. 

§  133.  Verification  of  adverse  claims  by  agents  of 
companies. — An  incorporated  company  must  necessarily  act 
through   its   officers  or  agents.     The  company,  as  a  company, 

1  Coming  Tunnel  Mining  &  Reduction  Co.  v.  Pell,  In  re  Slide  Lode,  Decision 
of  Commissioner,  November  3d,  1876,  '■>  <  lopp's  Land-owner,  130,  131;  Rev.  Si  ats. 
2331,  233i; ;  Decision  of  Acting  Secretary,  October  28th,  1873;  Decision  of  Com- 
missioner, March  71  li,  1873;  In  re  Dardanelles  Mining  Co.  V.  Bosphorus  Lode, 
Copp's  0.  S.  Mrning  Decisions,  L60,  161;  Decision  of  Secretary  of  Interior.  Mc- 
Munly  v.  Streeter,  April 30th,  1874. 

Decision  of  Acting  Secretary,  October  28th,  L873,  ('opp's  TJ.  S.  Mining  De- 
cisions, 161;  Affirming  Decision  of  Commissioner,  March  7th,  1873,  Copp's  U.  S. 
Mining  Decisions,  L60;  In  re  Bosphorus  Lode;  lure  Dardanelles  Mining  Co. ;  In 

re  California  Silver  .Mining  Co. 

*  Decision  of  Commissioner,  December  nth,  1874,  In  re  King  of  the  West 
Lode,  City  Rock  and  CJtah  Clamaints  v.  Pitts,  1  Copp's  Land-owner,  I4(i;  Jenny 

Lind    Mining  Co,  V.  Eureka   Mining  Co.,  Decision  of  Secretary  of   Interior,  No- 

rember24th,  1ST:;:  Opinion  of  Assistant  Attorney-General  in  same  case;  in  ro 

Eureka,  Montana,  Excelsior,  King  David,  and  Mary  Henrietta  Lodes;  .Fenny 
Lind  Mining  Co.  v.  Eureka  Mining  Co.,  Decision  of  Secretary,  November  24th, 
1874,  Copp's  D".  S.  Mining  Decisions,  169;  Opinion  of  Assistant  Attorney-Gen- 
eral, September  80th,  1873,  and  November  22d,  1873.  Ibid.  172, 175. 


§§  184-5  ADVERSE   CLAIMS.  187 

cannot  make  oath  to  the  statements  contained  in  an  adverse 
claim  presented  by  it.  Such  a  company  may  therefore  file  an 
adverse  claim  sworn  to  by  its  agent  or  attorney.  A  distinction 
is  to  be  drawn  in  this  respect  between  incorporated  and  unin- 
corporated companies  or  associations.  In  the  latter  case  the  act 
does  not  provide  that  the  claim  may  be  made  upon  the  oath  of 
an  agent  or  attorney,  and  without  statutory  authority  an  attor- 
ney cannot  make  oath  for  his  client,  and  in  such  cases  adverse 
claims  so  verified  will  be  rejected.1 

§  134.  Time  of  filing  adverse  claims. — The  rule  exclud- 
ing adverse  claims  not  filed  within  the  period  prescribed  after 
the  commencement  of  the  publication  of  notice,  has  been  so 
often  applied  by  the  Department,  that  it  must  now  be  regarded 
as  fully  settled.  No  further  time  can  be  granted,2  and  no  ad- 
verse claim  can  be  considered,  if  filed  after  the  expiration  of 
the  period  of  application.3 

The  words  "  and  after  the  expiration  of  said  period,  if  no  ad- 
verse claim  shall  have  been  filed,"  seem  clearly  to  require  the 
adverse  claims  "to  have  been  filed"  prior  to  the  expiration  of 
the  time  for  notice.  The  meaning  is  that  the  register  shall  give 
the  notice  required  for  the  prescribed  period,  and  that  parties 
having  adverse  claims  shall  have  the  entire  period  in  which  to 
file  their  claims,  and  that  upon  its  expiration,  the  very  next  day 
thereafter,  if  there  have  been  no  adverse  claims  filed,  the  claim- 
ant shall  have  the  right  to  apply  to  the  Surveyor-General  for  a 
survey,  and  upon  its  being  approved,  and  the  land  paid  for,  and 
the  proper  papers  forwarded  to  the  Commissioner,  he  shall  be 
entitled  to  his  patent.4 

§  135.  Commencing  second  suit — Dismissal  of  former 
suit. — The  commencement  of    another  suit   against   applicants 

1  Equator  Mining  &  Smelting  Co.  v.  Marshall  Silver  Mining  Co.,  Decision  of 
Acting  Commissioner,  October  26th,  1874,  1  Copp's  Land-owner,  132;  Decisions 
of  Secretary  and  of  Assistant  Attorney-General,  November  22d  and  November 
24th,  1873,  1  Copp's  Land-owner,  132. 

2  In  re  Unicorn  Lode,  Decision  of  Commissioner,  April  18th,  1873,  Copp's  U. 
S.  Mining  Decisions,  194;  Decision  of  Secretary,  March  14th,  1872,  Copp's  U.  S. 
Mining  Decisions,  74;  Seymour  v.  Woods,  Decision  of  Commissioner,  March 
23d,  1877. 

8  In  re  Equator  Lode,  Decision  of  Commissioner,  2  Copp's  Land-owner,  114. 
*  Ibid. 


188  ADVERSE    CLAIMS.  §  136 

for  a  patent,  after  the  time  allowed  by  the  Office  to  bring  suit 
to  adjudicate  the  right  of  possession  to  the  mine  has  expired, 
will  not  be  considered  by  the  Office,  and  the  mineral  entry  will 
be  allowed. 

Thus,  where  a  suit  was  brought  within  the  time,  but  after- 
wards dismissed  on  complainant's  motion  without  prejudice,  and 
another  suit  instituted  after  the  time,  the  latter  was  not  consid- 
ered. In  the  same  case,  an  adverse  claim  not  filed  within  the 
proper  time  was  likewise  ignored.1 

§  136.  What  constitutes  an  adverse  claim. — The  adverse 
claim  must  show  the  nature,  boundaries,  and  extent  of  the 
claim.  An  adverse  claim  cannot  consist  of  a  mere  informal 
protest ;  such  a  one  will  not  suspend  proceedings.  It  is  con- 
trary to  the  spirit  and  letter  of  the  law  and  the  practice  of  the 
General  Land  Office,  to  permit  one  person,  or  association  of 
persons,  to  file  one  protest  against  several  applications  for 
patents  for  separate  and  distinct  lodes.  Where  there  were 
three  separate  and  distinct  applications  for  patents  for  three 
separate  and  distinct  lodes,  each  application  was  held  an 
entirety,  and  to  rest  upon  its  own  merits.  As  each  applica- 
tion is  for  a  separate  and  distinct  portion  of  mineral  land,  par- 
ties Avho  desire  their  adverse  claims  considered  must  file  a  sep- 
arate and  distinct  adverse  claim  against  each  application  sepa- 
rately. They  must  strictly  comply  with  the  law  and  the  in- 
structions, and  file  with  the  local  land  officers  within  the  time 
prescribed  by  law,  and  in  proper  form,  a  separate  and  distinct 
adverse  claim  against  each  application  which  it  is  alleged  con- 
flicts with  the  premises  owned  by  such  adverse  claimants. 
Where  applicants  for  patents  strictly  comply  with  the  law  and 
the  instructions,  a  like  requirement  will  be  imposed  upon  ad- 
verse claimants.2 

'In  n:  iviir:ui  Loile,  Decision  Commissioner,  July  8tli,  1872,  Copp's  U.  S.  Min- 
ing Decisions,  126;  Decision  of  Secretary  of  the  Interior,  July  5th,  1872,  Copp's 
U.S.  Mining  Decisions,  127;  Decision  of  Secretary  of  the  Interior,  November 
16th,  L872,  Hii'l.  127. 

-in  reZella  Lode;  in  re  Mountain  Tiger  Lode;  In  re  Rockwell  Lode;  Deci- 
sion of  Acting  Commissioner,  June  9th,  187:5,  Copp's  U.  S.  Mining  Decisions, 
20.'.     See  420  Mining  Co.  v.  Hull  ion  Mining  Co.  3  Sawyer  C.  C.  G38;  S.  C.  9  Nevada. 


§§  137-8  ADVERSE    CLAIMS.  189 

§  137.  Allegations  of  the  adverse  claim. — If  the  adverse 
claimants  properly  allege  that  they  are  the  owners  of  the  claim, 
that  is  good  pleading,  and  sufficient  to  notify  the  applicant  for 
patent  of  what  is  claimed.  The  material  thing  is  ownership,  in 
accordance  with  the  rides  and  regulations  of  miners.  But 
where  the  adverse  claimant  failed  to  file  with  his  adverse  claim 
record  evidence  that  he  had  title  to  the  premises  claimed  by 
him,  by  purchase  from  the  parties  who  had  record  "  title  to  the 
mine,"  and  the  adverse  claimant  did  not  positively  allege  owner- 
ship, but  only  that  he  claimed  as  purchaser,  and  referred  to  cer- 
tain deeds  which  showed  that  he  had  purchased  from  a  party 
who  had  no  right,  the  claim  was  rejected. 

Parties  are  held  to  a  full  and  unequivocal  declaration  as  to 
the  fact  of  ownership.  Thus,  in  the  case  just  adverted  to,  a 
party  couched  his  claim  of  title  in  such  language  that,  when 
coupled  with  the  transactions  he  pleaded  in  the  matter  of  cer- 
tain conveyances  under  which  he  claimed,  raised  the  presump- 
tion that  his  estate  was  rather  one  of  trust  than  of  fee  or  own- 
ership, and  the  adverse  claim  was  rejected.  In  this  case  the  deeds 
referred  to  showed  that  he  purchased  from  a  party  who  had  no 
right,  title,  or  interest  in  the  mine  ;  a  party  who  had  previously 
conveyed  to  a  foreign  corporation.  It  Avas  urged  that  he  held 
the  property  in  trust  for  the  company,  and  that  the  latter  was 
the  party  whose  interests  were,  in  fact,  to  be  protected  by  the 
adverse  filing.  The  claim,  as  trustee,  was  not  considered  suffi- 
cient, and  the  doctrine  just  enunciated  was  applied.1 

§  138.   What  the  adverse   claimant  must  show. — The 

adverse  claimant  must  show  sufficient  compliance  with  the  min- 
ing laws,  and  the  usages  and  customs  of  mining  districts,  to 
make  it  clear  that  he  is  acting  in  good  faith. 

Where  there  was  nothing  in  the  protest  or  affidavit  to  show 
that  the  adverse  claimants  had  complied  with  the  laws,  or  that 
it  was  a  valid  subsisting  claim  at  the  time  the  grantors  of  the 
applicant  made  their  location,  and  there  was  nothing  to  show 

iln  re  King  of  the  West  Lode,  City  Rock  and  Utah  Claimants  v.  Pitts.  1 
Copp's  Land-owner,  146;  Decision  of  Commissioner,  December  14th,  1874;  Jenny 
Lind  Mining  Co.  v.  Eureka  Mining  Co.,  Opinion  of  Assistant  Attorney-General  of 
the  United  States. 


190  ADVERSE    CLAIMS.  §  139 

that  the  adverse  claimant  or  his  grantors  performed  labor  or 
made  improvements,  or  was  in  possession  at  the  time  of  filing 
application,  and  moreover,  the  extent  and  boundaries  of  the  ad- 
verse claim  were  indefinite,  it  was  rejected.1 

"Where  it  was  not  shown  that  a  party  filing  a  protest  had  any 
authority  to  file  it,  and  give  notice  of  an  adverse  claim,  except 
the  statement  in  his  affidavit  that  he  had  the  authority  ;  nor  did 
it  appear  by  his  affidavit  or  otherwise  that  he  was  a  member  of 
the  company  in  whose  behalf  he  appeared,  it  was  held  that  a 
mere  allegation  of  authority  is  not  sufficient — the  authority  to 
act  must  be  shown. 

In  the  case  of  the  Eureka  Mining  Company  v.  the  Jenny 
Lind  Mining  Company  et  al.,  decided  Nov.  24th,  1873,  it  was 
held  "  that  the  jurat  to  the  adverse  claim  required  by  the  seventh 
section  of  said  act,  (Act  of  May  10th,  1872)  must  be  made  by 
the  party,  and  cannot  be  made  by  an  attorney."  2 

When,  however,  the  party  in  interest  is  an  incorporated  com- 
pany which  can  only  act  through  an  agent  from  the  necessity  of 
the  case,  this  rule  must  be  somewhat  modified.  In  such  case 
the  company  may  verify  its  protest  by  the  oath  of  its  president 
or  other  executive  officer ;  or  it  may,  by  letter  of  attorney,  ap- 
point some  proper  person  to  act  for  it,  who  would  then  be 
clothed  with  sufficient  power  to  make  an  affidavit.  Without 
such  authority  a  person  not  an  executive  officer  of  the  company 
would  have  no  right  to  act,  and  whatever  he  might  do  in  its 
behalf  would  be  invalid,  and  should  be  so  regarded.3 

§  139.  Form  of  adverse  claim. — It  must  be  made  out  in  the 
form  prescribed  by  the  Act  of  May  10th,  1872,  and  the  Re- 
vised Statutes  and  the  instructions  issued  thereunder.  If  it  is 
not  so  made  out  it  will  be  rejected. 

The  record  must  show  that  a  survey  was  made  of  the  prem- 
ises churned  adversely.  The  diagram  or  plat  filed  must  be  "  made 
from  an  actual   survey  by   a   United   States  deputy,"   or   other 

1  Eawley  Consolidated  Mining  Co.  v.  Memnon  Mining  Co.;  In  re  Sheridan 
Lode,  Dec!  [on  of  Secretary  of  Interior,  Feb.  12th,  1876;  2  Copp's  Land-owner, 

.       ion  of  Commissioner,  [bid, 

2  Copp's  i'.  s.  Mining  Decisions,  169. 

II  iwley  Consolidated  Mining  Co.  V.  Memnon  Mining  Co.;  In  re  Sheridan 
Lode,  Decision  of  Secretary  of  Interior,  Feb.  12th,  1876,  2  Copp's  Land-owner,  180. 


§  139  ADVERSE    CLAIMS.  191 

surveyor.  A  certificate  or  sworn  statement  must  be  attached  to 
the  plat  or  diagram,  signed  by  a  deputy  or  other  surveyor  as  to 
the  correctness  thereof. 

There  must  also  be  a  "  certificate  or  sworn  statement  by  the 
surveyor  as  to  the  approximate  value  of  the  labor  performed 
or  improvements  made  upon  the  claim  of  the  adverse  party," 
either  attached  to  said  plat  or  on  file  with  the  case. 

The  adverse  claimant  must  also,  under  oath,  show  the  nature, 
extent,  and  boundaries  of  his  adverse  claim,  and  make  out  a 
case  showing  at  least  a  formal  conflict  with  the  claim  of  the 
applicants  for  a  patent.  If  this  be  not  done,  the  proceedings 
for  a  patent  will  not  be  suspended.1 

The  adverse  claimant  should  show  that  he  has  complied  strictly 
with  the  local  laws,  and  the  nature  and  extent  of  the  alleged 
conflict,  and  that  the  conflicting  locations  are  on  one  and  the 
same  lode. 

He  should  set  forth  the  facts  in  detail  upon  which  he  bases  his 
adverse  claim,  so  that  the  office  can  apply  the  law.  Allegations 
of  conclusions  of  law  are  equally  out  of  place  in  the  Land 
Office  as  in  pleadings.2 

As  adverse  claims  must  comply  with  the  law  and  the  instruc- 
tions, and  be  in  the  prescribed  form,  where  the  record  did  not 
show  that  any  survey  was  made  of  the  premises  claimed  ad- 
versely, and  where  the  diagram  or  plat  which  was  filed  did  not 
show  that  it  was  made  from  an  actual  survey  by  a  United  States 
deputy  or  other  surveyor,  and  there  was  no  certificate  or  sworn 
statement  attached  to  the  plat  or  diagram  signed  by  a  deputy  or 
other  surveyor,  as  to  the  correctness  thereof,  and  no  "  certificate 
or  sworn  statement  by  the  surveyor,  as  to  the  approximate  value 
of  the  labor  performed,  or  improvements  made  upon  the  claim 
of  the  adverse  party,"  either  attached  to  the  plat  or  on  file  in 
the  case,  and,  therefore,  nothing  to  show  the  nature,  extent,  and 
boundaries  of  the  adverse  claim,  it  was  not  recognized,  and  such 

1  In  re  War  Eagle  Mine,  Decision  of  Commissioner,  May  1st,  1873,  Copp's  U.  S. 
Mining  Decisions,  195. 

-  In  re  Wandering  Boy  Lode ;  In  re  Porcupine  Mine,  Decision  of  Commis- 
sioner, May  6th,  1873,  Copp's  U.  S.  Mining  Decisions,  197. 


192  ADVERSE    CLAIMS.  §  139 

a  claim  is  not  sufficient  to  stay  proceedings  on  application  for  a 
patent.1 

And  where  an  adverse  claimant  failed  to  file  a  copy  of  the 
original  notice  of  location  of  his  claim  from  the  office  of  the 
proper  recorder,  to  show  the  number  of  feet  embraced  by  said 
location,  the  number  of  locators,  or  the  number  of  feet  acquired 
by  purchase,  and  failed  to  produce  evidence  in  regard  to  ex- 
penditures on  the  lode,  and  did  not  show  the  nature  or  extent 
of  the  alleged  conflict,  and  did  not  assert  that  the  two  locations 
were  on  one  and  the  same  lode,  the  adverse  claim  was  re- 
jected.2 

The  adverse  claimants  must  also  set  forth  the  facts  in  detail 
upon  which  they  base  their  adverse  claim,  and  how  the  prem- 
ises described  in  the  application  for  patent  conflict,  and  the  ex- 
tent of  the  conflict,  and  must  not  state  legal  deductions  or  con- 
clusions. For  this  reason,  an  allegation  "  that  sufficient  work 
and  all  acts  and  things  were  done  according  to  the  acts  of  Con- 
gress, the  mining  laws  of  the  district  and  customs  of  miners, 
to  hold  and  possess  the  same,"  is  bad  and  insufficient.3 

An  actual  survey  must  be  made  of  the  entire  mineral  claim. 
The  claimant  is  not  allowed  to  color  a  portion  of  the  apjriicant's 
survey,  and  treat  it  as  his  entire  adverse  claim.4 

It  has  been  held  that  an  omission  to  file  an  abstract  should 
be  treated  as  an  irregularity  only,  and  not  as  a  defect  that 
vitiates  the  adverse  claim.  A  party  claiming  only  an  equitable 
right  cannot  be  considered  as  an  adverse  claimant — especially 
where  a  party's  asserted  equities  grow  out  of  transactions  having 
to  do  with  the  mining  tract  covered,  by  that  and  not  by  some 
other  but  conflicting  tract  or  claim.5 

1In  re  War  Eagle  Mine,  Decision  of  Commissioner,  May  1st,  1873,  Copp'sU.  S. 
Mining  Decisions,  195. 

^In  re  Wandering  Hoy  Lode;  In  re  Prince  of  Wales  and  Antelope  Lodes;  In 
re  l'un  H|,iii<-  Lode;  Decision  of  Commissioner,  May  6th,  1873,  Copp'sU.  S.  Min- 
ing Decisions,  197. 

•  [bid. 

'  Bates  v.  Chambers,  In  re  Daniel  Webster  and  Homestead  Mines,  1  Copp's 
Land  owner,  98. 

5  Inn  Mono  Mine,  <  llaimants  < .  Gisborn,  Decision  of  Commissioner,  March  27th, 
L874  i  Copp  Land-owner,  136;  Opinion  of  Assistant  Attorney-General,  Sep- 
tember30th,  1873;  Jenny  Lind  Mining  Co.  v.  Eureka  Mining  Co.,  Decisionof 
Secretary  of  ih.    Interior,  November  21th,  1873,  Copp's  Mining  Decisions,  173. 


§  139  ADVERSE    CLAIMS.  193 

The  cause  of  action,  the  settlement  of  which  is  referred  to 
the  Courts,  is  not  one  created,  nor  is  the  remedy  denned  by  the 
act.  The  subject-matter  of  the  controversy  to  be  determined 
is  not  whether  an  applicant  shall  have  a  patent  from  the  Unit- 
ed States  for  his  location,  but  it  is  whether  one  party  unlaw- 
fully withholds  the  possession  of  the  premises,  or  any  part  of 
them,  from  the  other ;  and  upon  that  issue  the  unlawful  entry  or 
cause  of  action  may  be  shown  to  have  accrued  to  the  plaintiff 
at  any  time  within  the  running  of  the  Statute  of  Limitations. 
A  suit,  therefore,  commenced  before  the  adverse  claim  is  filed, 
suspends  proceedings  as  well  as  one  commenced  within  thirty 
days  afterward. 

An  adverse  claim  should  be  so  drafted  as  to  inform  a  person 
that  a  portion  of  the  mining  claim  he  is  seeking  to  obtain  a 
patent  for  does  not  belong  to  him,  but  to  the  adverse  claimant ; 
and  with  such  precision  as  to  fairly  advise  him  of  the  nature, 
boundaries,  and  extent  of  the  adverse  claim,  so  that  he  may 
prepare  himself  to  establish  his  own,  on  the  trial  before  the 
Courts  and  meet  the  adverse  claim.1 

1  An  adverse  claim  containing  the  following  allegations  has  been  approved  by 
an  Assistant  Attorney-General  of  the  United  States,  viz:  That  the  adverse 
claimant  is  the  "  lawful  owner  and  entitled  to  the  possession  of  about  1,100  feet 
of  the  said  Eureka  Lode,"  that  it  is  the  "owner,  by  location  of  the  persons 
composing  said  association,  and  in  jjossession  of  the  following  named  lodes  or 
veins  of  quartz,  or  other  rock  in  place,  bearing  silver  and  other  metals,  viz  : 
The  south  extension  of  the  Bullion  Lode,  the  Queen  Victoria  Lode,  and  the 
Pride  of  the  West  Second  Lode,  situated,  located,  and  recorded  in  the  Tintic 
Mining  District,  Juab  County,  Utah  Territory."  That  "on  the  17th  day  of 
March,  a.  d.  1871,  the  several  premises  hereinafter  described  were  mineral  lands 
of  the  public  domain,  and  each  contained  a  vein  or  lode  of  quartz,  and  other  rock 
in  place,  bearing  and  containing  silver  and  other  minerals,  and  said  premises 
were  entirely  vacant  and  unoccupied,  and  were  not  owned,  held,  or  claimed  by 
any  person  or  party  as  mining  claims  or  otherwise,  and  that  while  the  same 
were  so  vacant,  unoccupied,  and  unclaimed,  the  persons  (see  Exhibit  B)  forming 
the  association  known  as  the  Jenny  Lind  Mining  Company,  each  and  all  being 
citizens  of  the  United  States  at  the  time,  did  enter  upon  and  explore  and  dis- 
cover the  south  extension  of  the  Bullion,  containing  3,000  feet  linear  measure- 
ment, which  was  located  March  20th,  and  recorded  April  10th,  1871;  the  Queen 
Victoria  Lode,  containiug  2,000  feet  linear  measurement,  located  March  17th,  and 
recorded  March  18th,  1871;  and  the  Pride  of  the  West  Second  Lode,  containing 
1,000  feet  linear  measurement,  located  June  21st,  1871,  and  recorded  September 
19th,  1871."  "  That  the  said  Jenny  Lind  Company,  and  the  persons  composing 
the  same,  have  continuously  held  and  occupied  and  been  iu  the  actual  posses- 
sion of  the  mining  premises  and  lodes  since  the  date  of  location  of  the  same, 
with  the  knowledge  of  the  Eureka  Company  and  its  agents,  and  without  any 

W.  C— 13. 


194  ADVERSE    CLAIMS.  §  139 

The  fact  that   an  adverse  claim   is  not  accompanied  by  the 
plat  of  survey  and  field-notes,  is  not  necessarily  such  an  irregu- 

opposition  whatever  from  it  (the  Eureka  Company).  That  the  locators  of  said 
lodes,  and  the  Jenny  Lind  Mining  Company  respectively,  have  in  all  respects 
complied  with  every  custom,  rule,  regulation,  and  requirement  of  the  mining 
laws  of  said  mining  district,  and  thereby  became  and  are  owners  (except  as 
against  the  paramount  title  of  the  United  States)  and  the  rightful  possessors  of 
said  mining  claim  and  locations."  And  "that  the  Vice-President  of  the  Eu- 
reka Company,  at  the  time  of  his  filing  the  application  therefor,  well  knew  that 
the  Jenny  Lind  Mining  Company  was  the  owner,  in  possession  and  entitled  to 
the  possession,  of  so  much  of  said  mining  ground  embraced  within  the  survey 
and  plat  of  said  applicant  as  is  hereinbefore  stated;  and  the  said  Jenny  Lind 
Mining  Company  is  entitled  to  all  the  silver  and  other  metals  in  said  southern 
extension  of  the  Bullion  Lode,  the  Queen  Victoria  Lode,  and  the  Pride  of  the 
Vest  Second  Lode." 

It  further  appeared  that  the  Eureka  Company,  on  the  10th  of  October,  1S72, 
entered  into  a  written  contract  which  was  proffered  to  the  Jenny  Lind  Com- 
pany, but  never  executed  by  it,  in  which  the  Eureka  offered  to  convey  to  the 
Jenny  Lind,  when  patent  should  be  issued  to  it,  the  said  Bullion,  Queen  Victo- 
ria, and  Pride  of  the  VTest  Lodes,  in  consideration  that  the  Jenny  Lind  Com- 
pany would  refrain  from  filing  "an  adverse  claim  to  the  application  of  the  Eureka 
Company  for  patent.  This  writing  contained  the  following  clause:  "And, 
whereas,  the  said  party  of  the  first  part  (the  Eureka  Company)  has  no  claim  to 
any  part  of  said  Queen  Victoria,  Pride  of  the  West,  and  Bullion  locations,  their 
dips,  angles,  and  spurs."   . 

It  was  objected  that  the  adverse  claim  was  defective  in  this,  that  it  alleged 
ownership  by  location  of  the  south  extension  of  the  Bullion  Lode,  the  Queen 
Victoria  Lode,  and  Pride  of  the  "West  Second  Lode,  while  the  record  of  location 
showed  that  they  were  made  by  persons  some  of  whom  were  not  members  of 
the  Jenny  Lind  Company,  and  that  there  was  no  allegation  or  proof  that  such 
persons  ever  assigned  or  conveyed  their  interest  to  the  Company,  and  therefore 
it  was  urged  the  adverse  claim  did  not  "  show  the  nature  of  the  claim,"  as  re- 
quired by  the  act. 

Though  the  exhibits  did  show  that  the  persons  who  organized  the  Jenny  Lind 
Company  were  not  identical  with  some  of  the  locators  of  the  lodes,  yet  the  ob- 
jections were  overruled,  the  Assistant  Attorney-General  remarking,  in  his  opin- 
ion, to  the  Secretary  of  the  Interior:  "Suppose  tin;  adverse  claim  had  alleged 
ownership  by  location  and  the  exhibits  had  shown  ownership  by  purchase,  the 
claim  would  have  undoubtedly  been  good.  The  material  thing  is  ownership  in 
accordance  wit  b  the  rules  and  regulations  of  miners.  All  that,  is  alleged;  and  it 
is  also  alleged  that  the  Eureka  had  full  knowledge  of  the  ownership  and  pos-' 
Be   Ion,  and  never  asserted  any  claim  to  the  contrary. 

"The  statement  in  the  written  agreement  goes  further,  and  admits  that  said 
Oompanj    bad   no  claim  to  any   part  of  the  said  lodes  of  the  Jenny  Lind  Com- 
pany.    It  is  claimed  that  this  admission  should  not  bo  regarded  in  the  case,  be- 
lt  nras  j ling  a  treaty  of  compromise.     (Irani- it:  yet  it- is  the  admission 

i  if  a  fact  made  without  any  stipulation  that  it  should  be  without  prejudice  and 
according  to  t  he  \ineri  m  ca  i  ,  is  receivable  as  an  admission  against  the  Eu- 
r<  i. a  <  lompany." 

Eureka  Mining  Co.  v.  Jenny  bind  Mining  Co.,  Decision  of  Secretary  and  Opin- 
lonof  Assistant  Attorney-General  0".  S.,  November  22d  and  24th,  187:3,  reversing 
Decision  ol   Commi    doners,  March  26th,  1873,  Copp's  U.  S.  Mining  Decisions, 


§  140  ADYERSE    CLAIMS.  195 

larity  as  will  justify  an  exclusion  of  the  claim,  especial]}"  if 
reasonable  means  were  used  to  procure  the  survey  and  field-notes, 
as  if  claimants  prevented  the  protestants  from  obtaining  them 
by  obtaining  control  of  the  United  States  deputy  surveyors, 
and  preventing  them  from  making  the  survey. 

While  the  regulations  issued  by  the  Commissioner  require 
the  plat  and  field-notes,  they  were  not  intended  to  operate  as  a 
bar  where  an  applicant  in  good  faith  has  done  all  in  his  power 
to  comply  with  them.  So  the  fact  that  no  abstract  of  title 
accompanies  the  adverse  claim  is  not  a  fatal  irregularity,  if  the 
adverse  claimants  allege  that  they  are  the  owners  of  the  claim.1 

A  statement  in  the  adverse  claim  that  the  affiant  is  president 
of  the  company  is  prima  facie  evidence  of  the  fact,  and  so  is 
the  official  seal  of  a  notary  public  as  to  the  fact  of  his  notary- 
ship.2 

§  140.  Prima  facie  adverse  claim. — The  question  as  to 
what  constitutes  a  prima  facie  adverse  claim  was  passed  upon 
in  the  Land  Department,  in  the  case  of  Bullion  Mining  Com- 
pany v.  420  Mining  Company.  On  Nov.  6th,  1867,  the  Bullion 
Mining  Company  filed,  under  the  Act  of  1866,  an  application 
for  patent  for  1,200  linear  feet  of  the  Comstock  Lode,  Nevada, 
and  also  a  diagram  of  the  premises  claimed.  The  notice  of  in- 
tention to  apply  for  a  patent  Avas  published  on  the  14th  of  Nov. 
1867,  and  for  a  period  of  ninety  days  thereafter.  Various  ad- 
verse claims  were  filed  and  suits  commenced  thereon,  but  they 
were  all  either  abandoned,  dismissed,  or  settled,  except  the  ad- 
verse claim  of  the  420  Mining  Company,  which  was  filed  on 
the  4th  of  February,  1868,  and  within  the  ninety  days'  notice 
provided  for  by  the  Act  of  1866,  and  was  properly  verified. 

The  claim  stated  that  the  420  Mining  Company  was  "  a  corpo- 
ration duly  organized,  and  now  existing  under  the  laws  of  the 
State  of  California ;  that  the  420  Mining  Company  is  the  owner 

166,  169,  175.  See,  also,  Mount  v.  Bogart,  Antbon,  190;  Maney  v.  Carter,  4  Conn. 
635;  Fuller  v.  Hampton,  5  Conn.  51(i;  Sanborn  v.  ISTeilson,  4  N.  H.  501;  Delogey 
u.  Rentone,  1  Martin,  175;  Marvin  v.  Richmond,  13  Den.  58;  Cole  v.  Cole,  34  Me, 
542. 

1  Eureka  Mining  Co.  v.  Jenny  Lind  Mining  Co.,  Opinion  Attorney-General, 
September  30th,  1873,  Copp'sU.  S.  Mining  Decisions,  170-173. 

2  Ibid. 


196  ADVERSE    CLAIMS.  §  140 

of  and  has  for  more  than  nine  years  last  past,  been  in  the  pos- 
session of  420  feet  of  the  lode  known  and  called  "  The  Cemstock 
Lode  "  *  *  "  that  420  feet  of  the  north  end  of  the  mining 
ground  claimed  by  the  said  Bullion  Mining  Company  is  the 
mining  ground  of  the  said  420  Mining  Company,"  "  that  on  or 
about  the  16th  day  of  Nov.,  1865,  the  said  Bullion  Mining 
Company,  as  plaintiff,  commenced  an  action  against  the  420 
Mining  Company,  as  defendant,  in  the  District  Court  of  the 
First  Judicial  District,  Nevada,  in  and  for  Storey  County,  to  re- 
cover from  the  said  defendant  the  possession  of  the  northern 
420  feet  of  the  said  mining  ground  described  by  said  notice 
*     *     *     *     *     anc[  t]iat  gaj(j  su^  jg  gti}i  pending  in  said  Court 

and  undetermined."  Only  the  application  for  patent  and  a  dia- 
gram of  the  premises  claimed  were  filed  by  the  Bullion  Com- 
pany previous  to  Oct.  22d,  1872,  except  the  proof  of  the  publi- 
cation of  notice,  which  was  filed  on  the  2d  of  March,  1868. 
The  Bullion  Company's  application  was  not  under  oath,  and 
they  failed  to  file  with  their  application  any  evidence,  record  or 
otherwise,  tending  to  show  that  they  were  in  a  condition  to  apply 
for  a  patent,  or  that  they  had  any  record  or  other  title  to  the 
premises  described  in  their  application.  They  filed  no  proof 
that  they  had  previously  occupied  and  improved  the  premises 
in  accordance  with  local  customs  and  rules  ;  that  they  had  ex- 
pended on  the  premises,  in  actual  labor  and  improvements,  a 
Mini  of  not  less  than  $1,000 ;  and  they,  as  it  appeared,  recog- 
nized the  fact  that  there  was  a  "  controversy  or  opposing  claim  " 
in  regard  to  part  of  the  premises  described,  by  commencing  suit 
against  the  420  Company  to  recover  possession  of  the  ground 
claimed  by  it. 

On  the  22d  of  October,  1872,  the  Bullion  Company  filed  a 
certificate  of  incorporation,  an  abstract  of  title,  and  several 
affidavits  in  regard  to  possession,  improvements,  and  the  posting 
of  i Ik1  notice  and  diagram  upon  the  claim.  On  the  15th  of 
January,  1873,  they  filed  a  copy  of  the  local  mining  laws,  and 
further  affidavits  in  regard  to  possession  and  compliance  with 
the  Local  laws,  and  on  the  18th  of  January,  1873,  were  permitted 
to  enter  their  claim. 

It  appeared  by  the  clerk's  certificate  that,  after  the  dismissal 
of  the  suit  commenced  by  the  Bullion  Company,  the  420  Mining 


§  141  ADVERSE    CLAIMS.  197 

Company  commenced  suit,  November  29th,  1872,  against  the 
Bullion  Company,  to  adjudicate  the  right  of  possession.  This 
was  held  to  be  within  a  reasonable  time  after  the  dismissal  of 
the  suit  by  the  Bullion  Company.  A  copy  of  the  complaint 
was  on  file  in  the  Land  Office. 

The  attorney  for  the  420  Company  filed  a  certified  copy  of 
the  certificate  of  incorporation  of  said  company,  and  the  affidavit 
in  regard  to  the  adverse  claim. 

The  question  was  presented  on  this  state  of  facts,  whether 
the  420  Company  had  presented  such  an  adverse  claim  as  was 
contemplated  by  the  Act  of  1866,  and  one  which  should  be 
adjudicated  in  the  local  Courts  before  patent  issued.  It  was 
acknowledged  that  both  the  application  for  patent  and  the 
adverse  claim  were  incomplete  ;  but  it  was  held  that  the  respect- 
ive rights  of  the  two  companies  should  be  adjudicated  in  a 
Court  of  competent  jurisdiction  before  patent  issued,  and  that  a 
prima  facie  adverse  showing  had  been  made  out  by  the  420 
Company,  inasmuch  as  the  adverse  claim  was  filed  in  due  time, 
and  was  under  oath ;  the  premises  had  been  in  litigation  for 
many  years,  and  a  suit  in  ejectment  was  pending  between  the 
companies  in  the  local  Courts  at  the  time  the  application  for 
patent  was  filed,  and  in  regard  to  the  premises  in  dispute ;  and 
that  when  the  Bullion  Company  abandoned  that  suit,  the  420 
Company  took  the  necessary  steps  to  secure  a  decision  in  the 
Courts.1  Where  the  Land  Office  has  decided  that  an  adverse 
claimant  has  made  out  a  prima  facie  adverse  shoAving,  and  the 
contest  is  transferred  to  the  Courts  of  competent  jurisdiction, 
and  they  decide  that  the  adverse  claimant  has  no  right,  title,  or 
interest  in  the  premises,  the  decision  is  final  and  binding  on  the 
office.  The  claimant  cannot  afterward  cpiestion  its  mineral 
character.2 

§  141.  Sufficient  filing. — The  Commissioner  has  not  the 
power  to  make  a  regulation  in  conflict  with  the  law.  The 
Commissioner,  in  his  regulations  issued  under  the  Act  of  1866, 

1  Bullion  Mining  Company  t'.  420  Mining  Company,  Decision  of  Commissioner, 
August  19th,  1873,  Copp's  U.  S.  Mining  Decisions,  219  ;  see  S.  C.  9  Nevada,  240; 
3  Sawyer  C.  C.  634. 

2  Evans  v.  Randall,  Decision  Secretary,  March  23d,  1876,  3  Copp's  Land- 
owner, 2. 


198  ADVERSE    CLAIMS.  §§  142-3 

required  that  the  adverse  claim  should  be  filed  with  the  register, 
or,  in  his  absence,  with  the  receiver.  But  a  filing  in  the  office 
of  the  register  is  substantially  a  filing  with  the  register  and 
receiver  within  the  meaning  of  the  law.  It  is  not  necessary 
that  both  the  receiver  and  register  should  mark  documents  filed, 
or  that  two  copies  should  be  filed.1 

§  142.  Adverse  claims  must  be  accompanied  by  a  cer- 
tified survey. — The  protest  or  adverse  claim  must  conform 
strictly  to  the  law  and  the  instructions,  and  cannot  otherwise 
operate  as  a  bar  to  the  issuance  of  a  patent  as  applied  for. 

A  case  arose  where  there  was  nothing  with  the  papers  in  the 
case  to  show  that  an  "  actual  survey  "  was  made  of  the  prem- 
ises claimed  by  the  adverse  claimants.  A  plat  was  filed,  but  no 
surveyor  had  officially  certified  thereon  as  to  its  correctness. 
There  was  no  certificate  or  sworn  statement  by  a  surveyor, 
"as  to  the  approximate  value  of  the  labor  performed,  or  im- 
provements made  upon  the  claim  of  the  adverse  party,"  either  at- 
tached to  the  plat  or  on  file  with  the  case.  The  adverse  claimants 
alleged  that  they  were  prevented  from  having  a  survey  made,  "  as 
the  agent  of  the  company  refused  to  allow  the  deputy-surveyor 
whom  the  claimants  had  engaged  to  survey  and  plat  the  same, 
to  go  on  to  the  plat  and  survey  of  said  company  for  that  pur- 
pose." But  with  the  papers  was  found  an  affidavit  of  a  person 
who  swore  that  he  was  the  deputy  mineral  surveyor,  and  that 
the  adverse  claimants  never  made  application  to  him  for  an  offic- 
ial survey  of  any  part  of  the  claim  described. 

No  evidence  was  on  file  showing  agency,  nor  that  an  oath  was 
made  to  the  adverse  claim  as  required  by  law.  The  jurat  be- 
ing taken  before  the  Clerk  of  a  District  Court  of  the  United 
States,  there  was  no  seal  to  the  jurat.  The  adverse  claim  was 
rejected  and  the  entry  allowed  and  approved.2 

§  143.  The  object    of    giving  notice  by  publication  is 

to  afford  an  opportunity  to  appear  and  be  heard  against  the  ap- 

1  Kiink.i  Mining  Co.  •'.  Jenny  Lind  Mining  Co.  Opinion  of  Attorney-General, 
September  30th,  L873,  «  <>| >j>" m  U.  S.  Mining  Decisions,  170. 

-  Decision  >>f  Secretary  of  the  Interior,  December  ilth,  1872,  Approving  Deci- 
sion of  Commissioner,  .inly  17th,  1873,  Copp's  U.  S.  Mining  Decisions,  337; 
!:•  .  Stat.  2326,  A.ct  of  IST'J,  See.  7,  17  U.  S.  Stat3.  at  Large',  !)2;  Instructions  Juno 
lOtli,  1«7'J,  Subdivision.}!). 


§  143  ADVEKSE    CLAIMS.  199 

plication,  to  all  persons  who  may  be  injuriously  affected  by  the 
issuance  of  a  patent  for  the  premises  claimed.  When  a  proper 
notice  is  given,  parties  in  interest  who  fail  to  appear  and  object, 
do  so  at  their  peril.  They  cannot  disregard  the  notice  unless 
the  advertisement  covers  claims  in  which  they  have  no  interest. 
If  it  does,  they  are  not  required  to  appear  and  watch  the  fur- 
ther progress  of  the  case,  lest  premises  should  be  substituted 
which  were  not  contained  in  the  notice,  and  which  may  include 
valuable  mining  interests  of  their  own.  If  they  have  carefully 
examined  the  notice  during  the  period  of  publication,  and  find 
that  it  does  not  describe  premises  in  which  they  have  an  interest, 
they  may  safely  dismiss  the  subject,  and  conclude  that  they  can- 
not be  prejudiced  by  any  subsequent  proceedings  in  the  case. 
Should  it  appear  that  the  parties  and  officers,  after  the  publica- 
tion of  the  notice,  improperly  and  illegally  change  the  descrip- 
tion of  the  premises,  so  that  the  final  survey  covers  premises  not 
included  in  the  advertisement,  and  in  which  third  parties  have 
an  interest,  then  such  third  parties  have  the  right  to  appear  at 
any  stage  of  the  proceedings  before  patent,  and  call  the  atten- 
tion of  the  tribunal  having  jurisdiction  over  the  subject  to  the 
fact  that  the  record  shows  that  the  applicant  has  no  right  to  a 
patent  for  the  premises  included  in  his  final  survey,  for  the  rea- 
son that  he  has  not  given  public  notice,  for  the  period  required 
by  law,  of  his  intention  to  apply  for  a  patent  for  the  premises, 
as  the  notice  he  gave  described  other  premises. 

A  case  arose  where  parties  requested  to  be  allowed  to  present 
a  caveat  against  the  issuing  of  a  patent,  and  to  submit  testimony 
showing  that  the  application  for  patent  ought  not  to  be  granted. 
There  was  a  material  difference  between  the  original  application 
and  notice,  and  the  final  survey,  in  accordance  with  which  a 
patent  had  been  issued  by  the  Commissioner,  before  appeal  to 
the  Secretary  of  the  Interior.  The  party  appeared  in  time  and 
made  the  proper  objections  to  the  sufficiency  of  the  case  of  the 
applicant  as  shown  by  the  record.  Their  objection,  it  was  held, 
could  not  be  considered,  because  patent  had  issued.  The  proper 
practice  was  said  to  be  to  allow  the  adverse  claimant  to  show, 
when  their  application  for  patent  reached  the  Office,  that  their 
right  to  the  lodes  in  controversy,  or  either  of  them,  or  any  part 
of  them,  was  superior  to  that  of  the  original  applicant,and  that 


200  ADVERSE    CLAIMS.  §  144 

the  portion  of  the  same  so  found  superior  had  been  included  in 
the  patent  issued  to  the  original  applicant,  and  thereupon  to  is- 
sue a  patent  to  the  adverse  claimant  for  the  portion  so  found 
superior  in  right,  reciting  therein  the  fact  that  a  former  patent 
had  inadvertently  and  erroneously  issued  for  the  same  to  the 
original  applicant.     This  decision  was  under  the  Act  of  1866. 1 

§  144.  Jurisdiction  of  the  Land  Office  over  adverse 
claims. — The  discovery  and  location  of  a  mining  claim  are  the 
first  steps  taken  to  initiate  a  right  thereto,  the  basis  upon  which 
rests  all  subsequent  proceedings ;  and  parties,  whether  appli- 
cants or  adverse  claimants,  are  bound,  in  asserting  their  claims 
before  the  office,  to  the  surface  ground  which  is  embraced  by 
the  original  location.  The  question  of  how  far  .the  General 
Land  Office  may  extend  its  examinations  into  the  sufficiency  of 
an  asserted  adverse  claim,  does  not  seem  to  be  fully  settled. 
Under  what  state  of  facts,  notwithstanding  the  timely  filing  in 
the  local  office  of  the  requisite  papers,  followed  by  resort  to  the 
proper  Court,  the  Commissioner  may  by  law,  and  should  ignore 
the  adverse  claim,  and  proceed  to  patent  the  tract  applied  foi 
without  waiting  for  the  determination  of  the  action  in  Court,  is  a 
question  frequently  presenting  itself.  That  the  mere  presenta- 
tion of  an  adverse  claim,  followed  by  proceedings  in  the  Courts, 
does  not  oust  the  jurisdiction  of  the  Land  Office,  is  settled.  In 
Jenny  Lind  Mining  Co.  v.  Eureka  Mining  Co.,2  after  thorough 
examination,  the  adverse  claims  of  certain  lodes  were  rejected 
by  the  Department  for  insufficient  verification.  This,  however, 
was  a  rejection  for  insufficiency  of  form,  and  did  not  settle  the 
question  as  to  whether  or  not  the  Office  may  consider  the  suffi- 
ciency of  the  substance  of  the  claim  as  presented.  It  is  held 
thai  it  may  to  this  extent,  that  if  upon  examination  of  the  claim 
presented,  treating  it  lor  the  purposes  of  an  examination  as  the 
pleading  of  the  claimant,  it  is  found  to  be  bad  on  general  de- 
murrer, then  it  ought  to  be  rejected. 

"The  mil  me,  boundaries,  and  extent  of  such  adverse  claim" 

1  Tii-riiiiii  v.  The  Salt  Lake  Mining  Co.,  Decision  of  Secretary  of  Interior, 
April  28th,  I  .  l,  I  Copp'S  Land-owner,  25;  Bee  B.  0.  Decision  of  Commissioner, 
December  L6th,  1H72,  Copp'S  U.  S.  .Mining  Decisions,  151 

2  Copp's  Mining  Decisional  17.';. 


§§  145-6  ADVERSE    CLAIMS.  201 

are  required  to  be  shown.  If  upon  that  showing  the  party  him- 
self, notwithstanding  his  declaration  of  conflict,  pleads  a  loca- 
tion, which,  allowing  reasonable  latitude  for  want  of  care  or 
technical  knoAvledge  in  the  locators  or  draughtsmen,  of  their  no- 
tice of  location,  does  not  evidence  a  conflict  in  fact,  the  appli- 
cant for  patent  ought  not  to  be  delayed  for  the  trial  of  an  al- 
leged fact,  whose  non-existence  stands  admitted  in  his  opponent's 
case.  Where  this  is  the  condition  of  things  the  adverse  claim 
will  be  rejected.1 

The  Land  Office  will  not  take  notice  of  the  filing  of  a  bill  in 
equity  to  restrain  the  applicants  for  a  patent  from  proceeding 
with  their  application,  where  no  adverse  claim  has  been  filed  in 
time.2 

§  145.  Notice  of  suit. — As  it  is  made  the  duty  of  the  ad- 
verse claimant  to  commence  suit  within  thirty  days  after  filing 
his  claim,  and  a  failure  to  do  so  being  deemed  a  waiver  of  his 
adverse  claim,  where  the  adverse  claimant  or  his  attorney  neg- 
lects to  file  in  the  local  land  office  evidence  that  suit  has  been 
commenced,  as  directed  by  the  statutes,  the  register  and  receiver 
are  bound  to  presume  that  the  adverse  claim  is  waived,  and  they 
will  act  accordingly.3 

§  146.  Authority  of  register  to  dismiss  an  adverse 
claim. — The  register  and  receiver  have  no  authority  to  dismiss 
an  adverse  claim  "nor  to  receive  additional  proof,  either  from 
the  applicant  for  patent  or  the  adverse  claimant,  after  the  time 
prescribed  by  law  for  publication  has  expired,  and  before  the 
"controversy  shall  have  been  settled  or  decided  by  a  Court  of 
competent  jurisdiction,  or  the  adverse  claim  waived,"  unless 
such  adverse  claimant  shall  fail  to  commence  proceedings  in 
Court  within  the  time  required  by  law  ,i.  e.,  within  thirty  days 
after  filing  his  claim  ;  in  which  last  event  the  application  is  al- 
lowed to  proceed  as  if  no  adverse  claim  had  been  asserted. 

Should  the  register  and  receiver  decide  that  an  adverse  claim 

1In  re  King  of  the  West  Lode,  City  Rook  and  Utah  Claimants  v.  Pitts,  Decis- 
ion of  Commissioner,  December  14th,  1874,  1  Copp's  Land-owner,  146. 

2In  re  Red  Pine  Mine,  Decision  of  January  18th,  1875,  1  Copp's  Land-owner, 
162. 

8  Decision  of  Commissioner,  August  6tb,  1875,  2  Copp's  Land-owner,  82. 


202  ADVEESE    CLAIMS.  §  147 

has  been  made  out  in  proper  form,  and  stay  proceedings  upon 
the  application  for  patent,  the  applicants  may  appeal  from  such 
decision  to  the  Commissioner  of  the  General  Land  Office  ;  and 
on  the  other  hand,  should  the  local  land  officers  decide  that  no 
adverse  claim  made  in  the  proper  form  had  been  filed,  the  ad- 
verse claimants  have  the  like  right  of  appeal.  But  in  no  event 
can  additional  proof  of  any  kind  be  received  upon  such  appeal.1 

§  147.  Proceedings  in  Court — Proper  party  to  com- 
mence suit — Time. — It  is  the  duty  of  the  adverse  claimant, 
within  thirty  days  after  filing  his  claim,  to  commence  proceed- 
ings in  a  Court  of  competent  jurisdiction,  to  determine  the 
question  of  the  right  of  possession,  and  prosecute  the  same 
with  reasonable  diligence  to  final  judgment. 

The  action  must  be  commenced  by  the  adverse  claimant  in 
order  to  entitle  him  to  a  stay  of  proceedings.  The  Act  of  1872 
expressly  requires  it  to  be  done  within  thirty  days  from  the 
filing  of  the  adverse  claim,  and  the  Act  of  1866,  it  has  been 
held,  required  it  within  a  reasonable  time.  In  the  case  of  the 
420  Mining  Company  v.  the  Bullion  Mining  Company,2  the  ad- 
verse claim  was  filed  February  4th,  1868,  and  no  suit  or  action 
was  commenced  by  the  adverse  claimants  until  over  four  years 
and  a  half  thereafter,  viz  :  on  November  29th,  1872.  Tli^i  was 
held  not  to  be  within  reasonable  time,  and  the  pendency  of  a 
suit  commenced  by  the  applicant  against  the  adverse  claimant 
to  try  the  right  of  possession  was  held  not  to  excuse  the  failure 
of  the  adverse  claimant  to  bring  suit  himself.  The  Secretary 
of  the  Interior,  in  deciding  the  case  on  appeal,  said  :  "  The  fact 
that  an  action  was  pending  in  the  local  Courts  in  which  the  Bui 
lion  Company  was  plaintiff  and  the  420  Company  defendant, 
did  not  relieve  the  latter  company  from  the  obligation  imposed 
by  the  statute.  That  proceeding  was  within  the  control  of  the 
plaintiff,  and  could  at  any  time  have  been  terminated  by  a  with- 
drawal of  the  suit,  or  by  submission  to  a  non-suit.  Under  such 
fin-umstances  there  would  have  been  no  final  adjudication  of  the 
rights  of  possession  as  required  by  the  act.     That  particular 

i Overman  Silver  Mining  Co.  v.  Dardanelles  Silver  Mining  Co.,  Decision  of 
r(l|iiii  \]>ril  11th,  187o,  Copp's  U.  S.  Mining  Decisions,  181. 

^  Decision  of  Secretary  of  Interior,  March  22d,  1875,  2  Copp's  Land-owner,  5. 


§  148  ADVERSE   CLAIMS.  203 

suit  would  have  ended,  but  no  final  adjudication  would  have  been 
reached.  And  this  is  precisely  what  occurred  in  this  case.  The 
plaintiff  withdrew  its  suit,  and  left  the  question  as  to  the  right  of 
possession  just  where  it  was  before.  It  had  nothing  to  lose,  and 
perhaps  something  to  gain  by  this  move,  and  by  making  it,  sim- 
ply and  properly  exercised  a  strict  legal  right.  A  similar  re- 
sult, working  a  practical  defeat  of  the  provisions  of  the  statute, 
is  liable  to  occur  at  any  time  in  this  class  of  cases,  if  it  be  held 
that  the  pendency  of  a  suit  against  a  protestant  relieves  him 
from  the  duty  of  making  himself  plaintiff  in  another  suit. 

"  The  evident  intent  of  the  statute  was  to  stay  proceedings 
only  when  the  protesting  party  within  reasonable  time  com- 
mences, and  with  reasonable  diligence  pursues,  his  remedy 
against  the  claimant.  This  construction  of  the  act  was  adopted 
by  your  Office,  and  included  in  your  instructions  to  the  local  of- 
ficers, under  date  of  June  25th,  1867,  prior  to  the  filing  of  this 
adverse  claim ;  and  in  my  opinion  it  is  the  only  consistent  con- 
struction of  which  the  language  is  susceptible.  I  am,  there- 
fore, of  opinion  that  the  420  Company  have  not  complied  with 
the  law  in  this  respect,  and  for  this  reason  are  not  entitled  to  a 
further  stay  of  proceedings." 

§  143.  Possession  as  equivalent  to  an  adverse  claim — 
Parties  to  institute  suit — Protests. — In  Becker  v.  Citizens 
of  Central  City  of  Colorado,1  the  former  claimed,  under  the 
Act  of  1866,2  3,000  linear  feet  of  a  mineral  deposit  near  Cen- 
tral City,  Colorado,  known  as  the  Gunnell  Extension,  or  White 
Lode.  He  alleged  full  compliance  with  the  law  and  instructions, 
but  his  claim  was  opposed  by  citizens  of  Central  City,  Colorado, 
who,  before  the  expiration  of  the  ninety  days  provided  in  the 
third  section,  filed  with  the  Commissioner  of  the  General  Land 
Office  a  remonstrance  protesting  against  the  issuing  of  the  pat- 
ent, representing  that  said  Gunnell  Extension,  or  White  Lode, 
as  claimed  by  Becker,  extended  to  a  considerable  distance  under 
town  lots  and  improvements  owned  and  occupied  by  them  in 
said  city. 

1  Opinion  of  Assistant  Attorney-General,  August  7th,  1871 ;  Decision  of  Acting 
Secretary  of  the  Interior,  August  9th,  1871,  2  Copp's  Land-owner,  98. 

2  14  Stats.  251. 


204  ADVERSE    CLAIMS.  §  148 

The  Commissioner,  in  a  letter  to  the  register  and  receiver, 
May  Gth,  1870,  said :  "  Although  such  protests  do  not,  in  the 
opinion  of  the  Commissioner,  constitute  such  an  adverse  claim 
as  would  properly  come  within  the  purview  of  the  sixth  section 
of  the  Mining  Act,  yet  in  view  of  the  magnitude  of  the  interests 
represented  to  be  involved,  it  is  deemed  but  fair  to  have  the 
rights  of  all  the  parties  determined  by  the  local  tribunals,  and 
you  will  accordingly  notify  all  parties  claiming  adversely  to 
said  application  of  Becker,  that  they  will  be  allowed  sixty  (60) 
days  from  the  date  of  your  notification,  in  which  to  institute 
proceedings  in  Court  to  adjudicate  their  respective  rights  in  the 
premises.'' 

Under  this  decision  the  petitioners  were  in  doubt  whether 
the  duty  of  commencing  proceedings  in  the  Courts  devolved 
under  it  upon  them  or  the  claimant.  December  12th,  1870,  the 
Commissioner  further  instructed  the  register  and  receiver  that 
was  the  duty  of  the  town  lot  claimants  to  commence  such  pro- 
ceedings. From  the  decision  of  the  Commissioner  the  town 
claimants  appealed. 

The  Assistant  Attorney-General,  in  his  opinion,  said : 
"  The  case  presents  two  questions  for  consideration  : 
"  1st.     Is  the  claim  of  the  petitioners  an  adverse  claim  within 
the  meaning  of  the  sixth  section  ? 

"2d.  Who  must  commence  the  proceedings  in  the  local 
Courts  ? 

"Possession  is  one  of  the  elements  of  title,  and  is  made  by 
this  statute  a  necessary  subject  of  inquiry.  If  found  to  be  in 
any  one  other  than  the  claimant,  it  is  a  bar  to  the  issuing  of  a 
patent,  at  least  until  adjudged  wrongful  in  the  manner  pointed 
out  in  the  sixth  section. 

"  There  can  be  no  question  about  this,  if  the  possession  relates 
to  the  vein  or  lode,  the  mine  itself  ;  but  it  is  said  that  it  is  other- 
wise if  it  relates  to  the  surface  of  the  land. 

"In  the  present  case,  the  application  for  a  patent  includes  the 
Biirface  and  soil,  as  well  as  the  mineral.  I  am  of  opinion  that 
the  persona  in  possession  of  this  surface  arc  adverse  claim- 
ants, and  have  an  adverse  claim  within  the  meaning  of  this  law, 
andare  entitled  to  be  heard  in  the  local  Courts,  before  a  patnet 
i    i    aed. 


§    149  ADVERSE    CLAIMS.  205 

"  Second.     Who  should  commence  the  proceedings  ? 

"As  a  general  rule,  the  suit  should  be  commenced  by  the 
party  who  sets  up  the  adverse  claim.  I  think  this  ink;  should 
apply  to  all  cases  except  those  in  which  the  adverse  claimant 
is  in  the  evident  and  open  possession  of  the  premises,  tract,  lode, 
or  vein,  or  a  portion  of  the  same.  When  thus  in  possession,  an 
adverse  claimant  who  attacks  his  right  to  possession  should  cer- 
tainly be  required  to  take  the  initiative.  To  hold  otherwise 
would  be  against  all  the  analogies  of  the  law. 

"In  the  case  now  under  consideration,  the  adverse  claimants 
are  in  the  evident  and  open  possession  of  the  surface  of  the 
ground,  or  a  portion  thereof,  and  under  the  rule  as  above  stated 
should  be  made  defendants  to  the  proceedings  which  Becker 
shoukl  be  required  to  bring  against  them." 

A  decision  of  the  Commissioner  not  in  accordance  with  these 
views  was  reversed,  and  sixty  days  given  to  Becker  after  tjie  re- 
ceipt of  notice  within  which  to  commence  proceedings  against 
the  parties  in  possession. 

§  149.  What  are  Courts  of  competent  jurisdiction. — In 

the  case  of  the  420  Mining  Company  v.  the  Bullion  Mining  Com- 
pany,1 the  case  was  tried  in  the  District  Court  for  the  First  Ju- 
dicial District  of  Nevada,  the  Court  having  original  jurisdiction  in 
this  class  of  cases.  The  Court  found,  as  a  matter  of  fact,  that  the 
Bullion  Company  had  title  to  the  land  in  contest ;  that  the  420 
Company  had  no  title,  and  that  the  Bullion  Company  had  been 
in  exclusive  possession  since  the  year  1865.  Judgment  having 
been  entered  for  the  defendant,  and  appeal  having  been  taken, 
the  appellate  tribunal,  the  highest  in  the  State,  unanimously  af- 
firmed the  decision  of  the  Court  below.  The  Department,  in 
1874,  considered  this  as  a  final  adjudication  by  "  Courts  of  com- 
petent jurisdiction."  The  Secretary,  on  appeal,  said:  "I  see  no 
good  reason  now  for  changing  the  opinion  then  expressed.  I  do 
not  understand  that  the  Supreme  Court  of  the  United  States 
has  jurisdiction  over  this  class  of  cases  upon  writ  of  error.  It 
certainly  cannot  change  the  facts  found  by  the  Court  below. 
These  facts  conclusively  establish  the  right  of  the  Bullion  Com- 

1  Decision  of  Secretary,  March  22d,   1875,  2  Copp's  Land-owner,  5.    See  9 
Nevada,  240. 


206  ADVERSE    CLAIMS.  §  150 

pany  to  the  possession  of  this  lode  under  local  laws,  so  far  aa 
that  question  can  be  considered  by  the  Department  in  connec- 
tion with  a  possible  further  stay  of  proceedings.  The  Depart- 
ment is  only  authorized  to  stay  proceedings  until  the  right  of 
possession  has  been  finally  adjudicated  in  the  Courts  of  compe- 
tent jurisdiction.  I  think  such  rights  have  been  so  finally  adju- 
dicated, where  facts  are  finally  found  which  unmistakably  con- 
trol their  disposition."  And  for  the  reason  that  the  420  Com- 
pany had  failed  to  commence  suit  within  reasonable  time  after 
filing  its  adverse  claim,  and  its  suit,  when  brought,  having,  so 
far  as  the  questions  before  the  Department  were  concerned,  been 
finally  decided  in  favor  of  the  Bullion  Company,  the  former 
company  was  held  not  entitled  to  any  further  stay  of  proceed- 
ings. 

§  150.  Contest  in  Court — Jurisdiction. — The  meaning  of 
Section  2326  of  the  Revised  Statutes  U.  S.  is,  that  all  cases 
which  may  arise  in  the  disposal  of  the  mineral  lands,  shall  be 
tried  and  determined,  if  tried  at  all,  in  a  Court  of  competent 
jurisdiction ;  that  the  adjudication  and  determination  of  that 
Court  shall  be  final,  and  a  patent  for  the  tract  in  controversy 
shall  issue  to  the  successful  party  or  parties,  upon  showing  fur- 
ther compliance  therewith.  It  is  equally  clear  that  when  the 
Court  has  acquired  jurisdiction  of  the  subject-matter  in  contro- 
versy, all  other  proceedings  except  those  mentioned  must  be 
stayed  until  such  determination  is  made,  if  the  suit  be  prose- 
cuted with  reasonable  diligence. 

The  only  question  which  can  ever  rise  is,  whether  the  adverse 
claimant  has  complied  with  the  terms  of  the  act,  so  as  to  bring 
his  case  within  it.  He  must  file  his  claim  during  the  period  of 
publication,  showing  its  nature,  boundaries,  and  extent,  and 
bring  suit  for  the  recovery  of  the  possession  of  it  within  thirty 
days  thereafter,  or  be  deemed  to  have  waived  it.  When  he  lias 
done  nil  this,  according  to  law,  it  is  only  necessary  for  the 
Departmenl  to  pass  upon  the  regularity  of  the  claim,  leaving 
tin    rights  of  the  parties  to  be  determined  by  the  Court.1 

It  is  the  duty  of  all  the  officers  under  whose  notice  an  adverse 

i  0.  T.  M.  <'"•  '•  I'1  11,   Dei  Iflion  of  Secretary,  Feb.  17th,  1877,  3  Copp's  Land- 
owner,  LOS. 


§  151  ADVERSE    CLAIMS.  207 

claim  properly  comes,  to  examine  it  and  determine  whether  the 
claimant  has  substantially  set  forth  under  oath,  its  "nature, 
boundaries,  and  extent ";  but  if  a  compliance  with  the  law  is 
shown  in  these  particulars,  and  a  suit  has  been  instituted  to  de- 
termine the  rights  of  the  parties,  the  Land  Office  can  proceed 
no  further  with  the  investigation.  It  is  the  duty  of  the  Court 
in  which  the  suit  is  pending,  to  determine  all  other  questions  re- 
lating to  the  controversy. 

Where,  therefore,  the  adverse  claimant  has  complied  with  the 
act,  has  filed  his  claim  under  oath  during  the  period  of  publica- 
tion, showing  the  origin  of  his  title,  as  well  as  the  nature,  bound- 
aries, and  extent  of  the  claim,  and  has  brought  suit  within  the 
time  prescribed  to  recover  possession  of  the  portion  claimed  by 
applicants,  applications  for  patents  will  be  suspended  until  the 
final  adjudication  and  determination  of  the  rights  of  the  parties 
involved  in  the  suits  instituted  in  the  Courts,  or  until  it  is  shown 
that  such  suits  have  not  been  prosecuted  with  reasonable  dili- 
gence. Objections  that  go  to  the  merits  and  not  to  the  form  of 
the  claim,  are  to  be  tried  in  the  suits  in  Court,  and  are  not  to  be 
further  considered  by  the  Land  Office,  until  the  final  determina- 
tion of  the  suit. 

Where  the  objection  was  that  the  claim  differed  in  point  of 
description  from  the  original  location,  and  that  the  adverse 
claimant  had  no  title  to  the  tract  claimed,  or  if  he  had,  he  held 
it  in  secret  trust  for  a  foreign  corporation,  and  was,  therefore, 
not  entitled  to  present  a  claim,  both  of  these  objections  were 
considered  as  going  to  the  merits  of  the  case,  and  not  to  the 
form  of  the  claim,  and  therefore  properly  triable  in  the  Courts  ; 
pending  which  trial  the  Land  Office  refused  to  enter  into  their 
investigation.  Upon  the  institution  of  the  suit  in  time,  the 
jurisdiction  is  transferred  to  the  Courts,  and  the  Department  has 
no  further  duties  to  perform  until  a  final  determination  of  the 
case.1 

§  151.  Jurisdiction  of  State  Courts. — The  law  provides 
that  where  an  adverse  claim  is  filed  within  the  time  and  in  the 
manner  specified  in  the  act,  certain  proceedings  "  shall  be  stayed 

1  Chambers  v.  Pitts,  In  re  King  of  the  West  Lode,  Decision  of  Secretary  of 
the  Interior,  December  26th,  1876,  3  Copp's  Land-owner,  162. 


208  ADVERSE    CLAIMS.  §  151 

until  the  controversy  shall  have  been  settled  or  decided  by  a 
Court  of  competent  jurisdiction,  or  the  adverse  claim  waived. 
It  is  the  duty  of  the  adverse  claimant,  within  thirty  days 
after  filing  his  claim,  to  commence  proceedings  in  a  Court  of 
competent  jurisdiction,  to  determine  the  question  of  the  right 
of  possession,  and  prosecute  the  same  with  reasonable  diligence 
to  final  judgment,  and  a  failure  to  do  so  shall  be  a  waiver  of  his 
adverse  claim." 

The  act  further  provides  that  after  such  judgment  shall  have 
been  rendered,  the  party  entitled  to  the  possession  of  the  claim 
*  *  may  *  *  file  a  certified  copy  of  the  judgment-roll 
Avith  the  register  of  the  Land  Office."  And  upon  compliance 
with  this  and  other  provisions  in  said  act,  "  a  patent  shall  issue 
thereon  for  the  claim,  or  such  portion  thereof  as  the  applicant 
shall  appear,  from  the  decision  of  the  Court,  to  rightly  pos- 
sess." J 

The  Supreme  Court  of  Nevada  has  held  that  Congress  did 
not,  by  the  passage  of  this  act,  nor  by  the  previous  Mining- 
Acts,  confer  any  additional  jurisdiction  upon  the  State  Courts. 
The  object  of  the  law  was  understood  to  be,  to  recpaire  parties 
protesting  against  the  issuance  of  a  patent  to  go  into  the  State 
Courts  of  competent  jurisdiction,  and  institute  such  proceed- 
ings as  they  might,  under  the  different  forms  of  action  therein 
allowed,  elect,  and  there  try  the  "  rights  of  possession "  to 
the  claims. 

The  Mining  Acts  did  not  attempt  to  confer  any  jurisdiction 
not  already  possessed  by  the  State  Courts,  nor  to  prescribe  dif- 
ferent forms  of  action.  The  State  statutes  regulating  the  mode 
of  procedure,  and  the  State  Statutes  of  Limitation,  were  held 
to  apply  to  all  such  controversies.  An  actual,  exclusive,  and 
uninterrupted  adverse  possession  for  the  statutory  period,  con- 
stitutes a  bar. 

The  pendency  of  a  suit  to  recover  possession  of  a  mining 
claim  does  not  estop  the  plaintiff,  in  case  of  a  suit  subscopicntly 
commenced  against  himself,  from  setting  up  the  Statute  of  Lim- 
itations, and  claiming  rights  and  privileges  thereunder.2 

117U.  s.  stats.  1872,  91j  Bee.  7;  Rev.  Stats.  Sec.  2326. 

-  420  Mining  I  «0.  V.  Bullion  Mining  Co.  *J  Nov.  240;  3  Sawyer  C.  C.  G34. 


§  152  ADVERSE    CLAIMS.  209 

§  152.  Transfer  of  causes  to  the  United  States  Courts 
— Jurisdiction  of  mining  causes. — In  cases  where  the  only 
questions  to  be  litigated  in  suits  to  determine  the  right  to  hold 
mining  claims  arc,  as  to  what  are  the  local  laws,  rules,  regula- 
tions, and  customs  by  which  the  rights  of  the  parties  are  gov- 
erned, and  whether  the  parties  have  in  fact  conformed  to  such 
local  laws  and  customs,  the  Courts  of  the  United  States,  it  has 
been  held,  have  no  jurisdiction  of  the  cases  under  the  provisions 
of  the  Act  giving  jurisdiction  in  suits  "  arising  under  the  Con- 
stitution and  laws  of  the  United  States,"  etc.,  and  entitled  "An 
Act  to  determine  the  jurisdiction  of  Circuit  Courts  of  the  United 
States,  and  to  regulate  the  removal  of  causes  from  State  Courts, 
and  for  other  purposes."  Approved,  March  3d,  1875.  (18  U. 
S.  Stats.  470.)1 

1  An  Act  to  determine  the  jurisdiction  of  Circuit  Courts  of  the  United  States, 
and  to  regulate  the  removal  of  causes  from  State  Courts,  and  for  other  purposes. 
— Beit  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  That  the  Circuit  Courts  of  the  United  States 
shall  have  original  cognizance,  concurrent  with  the  Courts  of  the  several  States, 
of  all  suits  of  a  civil  nature  at  common  law  or  in  equity,  where  the  matter  in 
dispute  exceeds,  exclusive  of  costs,  the  sum  or  value  of  five  hundred  dollars, 
and  arising  under  the  Constitution  or  laws  of  the  United  States,  or  treaties 
made,  or  which  shall  he  made,  under  their  authority,  or  in  which  the  United 
States  are  plaintiffs  or  petitioners,  or  in  which  there  shall  he  a  controversy  be- 
tween citizens  of  different  States,  or  a  controversy  between  citizens  of  the  same 
State  claiming  lands  under  grants  of  different  States,  or  a  controversy  between  cit- 
izens of  a  State  and  foreign  states,  citizens  or  smbjects;  and  shall  have  exclusive 
cognizance  of  all  crimes  and  offenses  cognizable  under  the  authority  of  the  United 
States,  except  as  otherwise  provided  by  law,  and  concurrent  jurisdiction  with  the 
District  Courts  of  the  crimes  and  offenses  cognizable  therein.  But  no  person  shall 
be  arrested  in  one  district  for  trial  in  another,  in  any  civil  action  before  a  Circuit 
or  District  Court.  And  no  civil  suit  shall  be  brought  before  either  of  said  Courts 
against  any  person  by  any  original  process  or  proceeding  in  any  other  district 
than  that  whereof  he  is  an  inhabitant,  or  in  which  he  shall  be  found  at  the  time 
of  serving  such  process  or  commencing  such  proceeding,  except  as  hereinafter 
provided;  nor  shall  any  Circuit  or  District  Court  have  cognizance  of  any  suit 
founded  on  contract  in  favor  of  an  assignee,  unless  a  suit  might  have  been  pros- 
ecuted in  such  Court  to  recover  thereon  if  no  assignment-had  been  made,  except 
in  cases  of  promissory  notes  negotiable  by  the  law  merchant  and  bills  of  ex- 
change. And  the  Circuit  Courts  shall  also  have  appellate  jurisdiction  from  the 
District  Courts  under  the  regulations  and  restrictions  prescribed  by  law. 

Sec.  2.  That  any  suit  of  a  civil  nature,  at  law  or  in  equity,  now  pending  or 
hereafter  brought  in  any  State  Court  where  the  matter  in  dispute  exceeds,  exclu- 
sive of  costs,  the  sum  or  value  of  live  hundred  dollars,  and  arising  under  the 
Constitution  or  laws  of  the  United  States,  or  treaties  made,  or  which  shall  be 
made,  under  their  authority,  or  in  which  the  United  States  shall  be  plaintiff  or 
petitioner,  or  in  which  there  shall  be  a  controversy  between  citizens  of  different 

W.  C— 14. 


210  ADVERSE    CLAIMS.  §  152 

In  the  case  of  Traf ton  v.  Nougues,  in  the  Circuit  Court  of  the 
United  States  of  the  Ninth  Judicial  Circuit  in  and  for  the  Dis- 

States,  or  a  controversy  between  citizens  of  the  same  State  claiming  land  under 
grants  of  different  States,  or  a  controversy  between  citizens  of  a  State  and  for- 
eign states,  citizens  or  subjects,  either  party  may  remove  said  suit  into  the  Cir- 
cuit Court  of  the  United  States  for  the  proper  district.  And  when  in  any  suit 
mentioned  in  this  section  there  shall  be  a  controversy  which  is  wholly  between 
citizens  of  different  States,  and  which  can  be  fully  determined  as  between  them, 
then  either  one  or  more  of  the  plaintiffs  or  defendants  actually  interested  in 
such  controversy  may  remove  said  suit  into  the  Circuit  Court  of  the  United 
States  for  the  proper  district. 

Sec.  3.  That  whenever  either  party  or  any  one  or  more  of  the  plaintiffs  <  >r 
defendants,  entitled  to  remove  any  suit  mentioned  in  the  next  preceding  section, 
shall  desire  to  remove  such  suit  from  a  State  Court  to  the  Circuit  Court  of  the 
United  States,  he  or  they  may  make  and  hie  a  petition  in  such  suit  in  such  State 
Court  before  or  at  the  term  at  which  said  cause  could  be  first  tried,  and  before 
the  trial  thereof,  for  the  removal  of  such  suit  into  the  Circuit  Court  to  be  held 
in  the  district  where  such  suit  is  pending,  and  shall  make  and  file  therewith  a 
boud,  with  good  and  sufficient  surety,  for  his  or  their  entering  in  such  Circuit 
Court,  on  the  iirst  day  of  its  then  next  session,  a  copy  of  the  record  in  such  suit, 
and  for  paying  all  costs  that  may  be  awarded  by  the  said  Circuit  Court,  if  said 
Court  shall  hold  that  such  suit  was  wrongfully  or  improperly  removed  thereto, 
and  also  for  there  appearing  and  entering  special  bail  in  such  suit,  if  special  bail 
was  originally  requisite  therein,  it  shall  then  be  the  duty  of  the  State  Court  to 
accept  said  petition  and  bond,  and  proceed  no  further  iu  such  suit,  and  any  bail 
that  may  have  been  originally  taken  shall  be  discharged  ;  and  the  said  copy 
being  entered  as  aforesaid,  in  said  Circuit  Court  of  the  United  States,  the  cause 
shall  then  proceed  in  the  same  maimer  as  if  it  had  been  originally  commenced 
in  the  said  Circuit  Court;  and  if  in  any  action  commenced  in  a  State  Court  the 
title  of  land  be  concerned,  and  the  parties  are  citizens  of  the  same  State,  and 
the  matter  in  dispute  exceed  the  sum  or  value  of  live  hundred  dollars,  exclusive 
of  costs,  the  sum  or  value  being  made  to  appear,  one  or  more  of  the  plaintiffs  or 
defendants,  before  the  trial,  may  state  to  the  Court,  and  make  affidavit,  if  the 
Court  require  it,  that  he  or  they  claim  and  shall  rely  upon  a  right  or  title  to  the 
land  under  a  grant  from  a  State,  and  produce  the  original  grant,  or  an  exemplifi- 
cation of  it,  except  where  the  loss  of  public  records  shall  put  it  out  of  his  or 
their  power,  and  shall  move  that  any  one  or  more  of  the  adverse  party  inform 
the  Court  whether  he  or  they  claim  a  right  or  title  to  the  land  under  a  grant 
from  some  other  State,  the  party  or  parties  so  required  shall  give  such  informa- 
tion, or  otherwise  not  lie  allowed  bo  plead  such  grant,  or  give  it  in  evidence  upon 
the  trial  ;  and  if  he  or  they  inform  1  hat  he  or  they  do  claim  under  such  grant, 
any  one  or  more  of  the»party  moving  for  such  information  may  then,  on  petition 
and  bond,  as  hereinbefore  mentioned  in  this  act,  remove  the  cause  for  trial  to 
the  Circuit  .Court  of  the  I  inted  Stales,  next  to  be  liolden  in  such  district;  and 
any  one  of  either  party  removing  the  cause  shall  not  be  allowed  to  plead  or  give 
evidence  ol  any  01  li'i'  t  it  le  I  haii  1  hat  by  him  or  them  stated,  as  aforesaid,  as  the 
ground  of  his  or  their  claim,  and  the  trial  of  issues  of  fad  in  the  circuit  Courts 
shall,  in  all  .  nits,  excepl    those  of  equity  and  of  admiralty  and  maritime   juris- 

dicl  ion,  be  by  jury. 

Si-.c.  I.  Thai  when  any  suit,  shall  he  removed  from  a  State  Court  to  a  Circuit 

Court  ol  the  I  oited  state,,   any  attachment  or  sequestration  of  the  goods  or 

.  ,,!  the  defendant,  had  In  such  suit  in  the  State  Court,  shall  hold  the  goods 


§  152  ADVERSE    CLAIMS.  211 

trict  of  California,  Sawyer,  Circuit  Judge,  rendered  a  decision 
February  5th,  1877,   in  which  he    very  fully  considered  the 

or  estate  so  attached  or  sequestered  to  answer  the  final  judgment  or  decree,  in 
the  same  manner  as  bylaw  they  would  have  been  held  to  answerfinal  judgment 
or  decree  had  it  been  rendered  by  the  Court  in  which  such  suit  was  commenced; 
and  all  bonds,  undertakings,  or  security  given  by  either  party  in  such  suit,  prior 
to  its  removal,  shall  remain  valid  and  effectual,  notwithstanding  said  removal; 
and  all  injunctions,  orders,  and  other  proceedings  had  in  such  suit,  prior  to  its 
removal,  shall  remain  in  full  force  and  effect  until  dissolved  or  modified  by  the 
Court  to  which  such  suit  shall  be  removed. 

Sec.  5.  That  if,  in  any  suit  commenced  in  a  Circuit  Court,  or  removed  from  a 
State  Court  to  a  Circuit  Court  of  the  United  States,  it  shall  appear  to  the  satis- 
faction of  said  Circuit  Court,  at  any  time  after  such  suit  has  been  brought  or 
removed  thereto,  that  such  suit  does  not  really  and  substantially  involve  a 
dispute  or  controversy  properly  within  the  jurisdiction  of  said  Circuit  Court,  or 
that  the  parties  to  said  suit  have  been  improperly  or  collusively  made  or  joined, 
either  as  plaintiffs  or  defendants,  for  the  purpose  of  creating  a  case  cognizable 
or  removable  under  this  act,  the  said  Circuit  Court  shall  proceed  no  further 
therein,  but  shall  dismiss  the  suit,  or  remand  it  to  the  Court  from  which  it  was 
removed,  as  justice  may  require,  and  shall  make  such  order  as  to  costs  as  shall 
be  just;  but  the  order  of  said  Circuit  Court,  dismissing  or  remanding  said  cause 
to  the  State  Court,  shall  be  reviewable  by  the  Supreme  Court  on  writ  of  error 
or  appeal,  as  the  case  may  be 

Sec.  (i.  That  the  Circuit  Court  of  the  United  States  shall,  in  all  suits  removed 
under  the  provisions  of  this  Act,  proceed  therein  as  if  the  suit  had  been  originally 
commenced  in  said  Circuit  Court,  and  the  same  proceedings  had  been  taken  in 
such  suit  in  said  Circuit  Court  as  shall  have  been  had  therein  in  said  State  Court 
prior  to  its  removal 

Sec.  7.  That  in  all  causes  removable  under  this  Act,  if  the  term  of  the  Circuit 
Court  to  which  the  same  is  removable,  then  next  to  be  holden,  shall  commence 
within  twenty  days  after  filing  the  petition  and  bond  in  the  State  Court  for  its 
removal,  then  he  or  they,  who  apply  to  remove  the  same,  shall  have  twenty 
days  from  such  application  to  file  said  copy  of  record  in  said  Circuit  Court,  and 
enter  appearance  therein;  and  if  done  within  said  twenty  days,  such  filing  and 
appearance  shall  be  taken  to  satisfy  the  said  bond  in  that  behalf;  that  ifsthe 
clerk  of  the  State  Court  in  which  any  such  cause  shall  be  pending,  shall  refuse 
to  any  one  or  more  of  the  parties  or  persons  applying  to  remove  the  same,  a 
copy  of  the  record  therein,  after  tender  of  legal  fees  for  such  copy,  said  clerk 
so  offending  shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof  in  the  Circuit  Court  of  the  United  States,  to  which  said  action  or 
proceeding  was  removed,  shall  be  punished  by  imprisonment  not  more  than  one 
year,  or  by  fine  not  exceeding  one  thousand  dollars,  or  both,  in  the  discretion  of 
the  Court. 

And  the  Circuit  Court  to  which  any  cause  shall  be  removable  under  this  Act, 
shall  have  power  to  issue  a  writ  of  certiorari  to  said  State  Court,  commanding 
said  State  Court,  to  make  return  of  the  record  in  any  such  cause  removed 
as  aforesaid,  or  in  which  any  one  or  more  of  the  plaintiffs  or  defendants  have 
complied  with  the  provisions  of  this  Act  for  the  removal  of  the  same,  and  en- 
force said  writ  according  to  law;  and  if  it  shall  be  impossible  for  the  parties  or 
persons  removing  any  cause  under  this  Act,  or  complying  with  the  provisions 
for  the  removal  thereof,  to  obtain  such  copy,  for  the  reason  that  the  clerk  of 
said  State  Court  refuses  to  furnish  a  copy,  on  payment  of  legal  fees,  or  for  any 


212  ADVERSE    CLAIMS.  §  152 

whole  question,  and  commented  on  the  difficulties  to  be  met 
with  in  the  construction  of  the  act. 

other  reason,  the  Circuit  Court  shall  make  an  order  requiring  the  prosecutor  in 
any  such  action  or  proceeding  to  enforce  forfeiture  or  recover  penalty  as  afore- 
said, to  file  a  copy  of  the  paper  or  proceeding  by  which  the  same  was  com- 
menced, within  such  time  as  the  Court  may  determine;  and  in  default  thereof, 
the  Court  shall  dismiss  the  said  action  or  proceeding;  but  if  said  order  shall  be 
complied  with,  then  said  Circuit  Court  shall  require  the  other  party  to  plead, 
and  said  action  or  proceeding  shall  proceed  to  final  judgment ;  and  the  said  Cir- 
cuit Court  may  make  an  order  requiring  the  parties  thereto  to  plead  de  novo  ; 
and  the  bond  given,  conditioned  as  aforesaid,  shall  be  discharged  so  far  as  it 
requires  copy  of  the  record  to  be  hied  as  aforesaid. 

Sec.  8.  That  when  in  any  suit,  commenced  in  any  Circuit  Court  of  the  United 
States,  to  enforce  any  legal  or  equitable  lien  upon,  or  claim  to,  or  to  remove  any 
incumbrance  or  lien  or  cloud  upon  the  title  to  real  or  personal  property  within 
the  district  where  such  suit  is  brought,  one  or  more  of  the  defendants  therein 
shall  not  be  an  inhabitant  of,  or  found  within  the  said  district,  or  shall  not  vol- 
untarily appear  thereto,  it  shall  be  lawful  for  the  Court  to  make  an  order  direct- 
ing such  absent  defendant  or  defendants  to  appear,  plead,  answer,  or  demur,  by 
a  day  certain  to  be  designated,  which  order  shall  be  served  on  such  absent  de- 
fendant or  defendants,  if  practicable,  wherever  found,  and  also  upon  the  per- 
son or  persons  in  possession  or  charge  of  said  property,  if  any  there  be;  or 
where  such  personal  service  upon  such  absent  defendant  or  defendants  is  not 
practicable,  such  order  shall  be  published  in  such  manner  as  the  Court  may 
direct,  not  less  than  once  a  week  for  six  consecutive  weeks;  and  in  case  such 
absent  defendant  shall  not  appear,  plead,  answer,  or  demur,  within  the  time  so 
limited,  or  within  some  further  time,  to  be  allowed  by  the  Court  in  its  discretion, 
and  upon  proof  of  the  service  or  publication  of  said  order,  and  of  the  perform- 
ance of  the  directions  contained  in  the  same,  it  shall  be  lawful  for  the  Court  to 
entertain  jurisdiction,  and  proceed  to  the  hearing  and  adjudication  of  such  suit 
in  the  same  manner  as  if  such  absent  defendant  had  been  served  with  process 
within  the  said  district;  but  said  adjudication  shall,  as  regards  said  absent  de- 
fendant or  defendants  without  appearance,  affect  only  the  property  which  shall 
have  been  the  subject  of  the  suit  and  under  the  jurisdiction  of  the  Court  there- 
in, within  such  district.    And  when  a  part  of  the  said  real  or  personal  property 
against  which  sucji  proceeding  shall  be  taken  shall  be  within  another  district, 
but  within  the  same  State,  said  suit  may  be  brought  in  either  district  in  said 
State  :  Provided,  Jwwever,  That  any  defendant  or  defendants  not  actually  per- 
sonally notified  as  above  provided,  may,  at  anytime  within  one  year  after  final 
judgment  in  any  suit  meiit  imied  in  I  his  sect  inn,  enter  his  appearance  in  said  suit 
in  said  <  'ireuit  Court,  and  thereupon  the  said  ( lourt  shall  make  an  order  setting 
a  Lde  the  judgment  therein,  and  permitting  said  defendant  or  defendants  to 
plead  therein,  on  payment  by  him  or  them  of  such  costs  as  the  Court  shall  deem 
jus!  ;  and  t  hereupon  said  Suit  shall  be  proceeded  witli  to  iiual  judgment  accord- 
ing to  law. 

Sec.  '.'.  Thai  whenever  either  party  to  a  final  judgment  or  decree  which  has 
bet  ii  or  shall  be  rendered  ill  any  Circuit  Court,  has  died  or  shall  die  before  the 
time  allowed  for  taking  an  appeal  or  bringing  a  writ  of  error  has  expired,  it 
shall  ii- .i  be  accessary  to  revive  the  suit  by  any  formal  proceedings  aforesaid. 
The  representative  of  Buch  deceased  party  may  file  in  the  office  of  the  clerk  of 
Buch  ( lircuit  ( lourt  a  duly  cerl  Lfied  copy  of  his  appointment,  and  thereupon  may 
enter  an  appeal  or  bring  writ  of  error  as  the  party  he  represents  might  have 


§  152  ADVERSE   CLAIMS.  213 

He  said :  "  I  have  had  no  little  difficulty  in  satisfactorily  con- 
struing this  act.  In  the  broad  sense  claimed  by  some,  nearly 
all  cases  relating  to  the  title  to  lands  would  be  swept  into  the 
National  Courts  ;  for,  in  the  new  States,  in  every  action  of  eject- 
ment involving  a  question  as  to  the  real  title,  one  party  or  the 
other  goes  back  to  a  patent  or  other  grant  under  the  laws  of  the 
United  States.  Since  the  passage  of  the  Act  of  Congress  of 
1866,  and  subsequent  acts  upon  the  same  subject,  expressly  de- 
claring the  public  lands  to  be  free  and  open  to  exploration  and 
occupation  for  mining  purposes,  subject  to  the  local  laws,  regu- 
lations, and  customs  of  miners  ;  also,  authorizing  a  sale  and  pat- 
ent to  parties  establishing  a  right  under  such  local  laws,  regula- 
tions, and  customs,  it  seems  to  be  claimed  on  this  broad  principle 
that  all  suits  relating  to  disputes  about  mining  claims  may  be 
transferred  to  the  National  Courts.  But,  clearly,  the  great  ma- 
jority of  such  cases  only  involve  a  litigation  of  precisely  the 
same  questions  as  were  litigated  in  those  classes  of  cases  for  the 
many  years  since  the  acquisition  of  California,  prior  to  the  pas- 
sage of  those  acts  of  Congress  ;  and  they  turn  upon  no  disputed 
construction  of  the  Constitution  or  the  statutes  of  the  United 
States.  In  fact,  where  a  patent  is  authorized  to  be  issued  to  the 
possessor  under  these  acts  in  a  contested  case,  the  statute  refers 
the  parties  to  the  ordinary  tribunals  of  the  country,  to  deter- 
mine under  the  local  laws  and  customs,  irrespective  of  the  acts 
of  Congress,  Avhich  party  is  entitled  to  the  mining  claim,  and 
the  patent  issues  to  the  party  so  determined  to  have  the  right. 
(The  420  Mining  Company  v.  The  Bullion  Mining  Company,  3 
Sawyer,  634.)  Thus,  the  rights  of  the  parties  are  determined 
the  laws,  regulations,  and  customs  of  the  locality  outside  the 
acts  of  Congress,  without  any  discussion  or  controversy  as  to 
the  construction  of  those  acts.  Since  some  of  this  class  of  cases 
transferred  to  this  Court  were  retained,  but  with  no  little  hesi- 
tation, the   Supreme   Court  of  the  United  States  has  decided 

•done.  If  the  party  in  whose  favor  such  judgment  or  decree  is  rendered  has 
died  before  appeal  taken  or  writ  of  error  brought,  notice  to  his  representatives 
shall  be  given  from  the  Supreme  Court,  as  provided  in  case  of  the  death  of  a 
party  after  appeal  taken  or  writ  of  error  brought. 

Sec.  10.  That  all  acts  and  parts  of  acts  in  conflict  with  the  provisions  of  this 
Act  are  hereby  repealed. 

Approved  March  3d,  1875. 


214  ADVERSE    CLAIMS.  §  152 

several  cases  which  afford  a  rule  for  the  future,  and  which,  it 
seems  to  me,  exclude  jurisdiction  in  many  cases  which  the  Bar 
appears  to  have  supposed  could  be  transferred.  The  case  of 
MeStay  v.  Friedman,  92  U.  S.  R.  724,  was  a  case  in  which  one 
of  the  parties  relied :  First,  on  the  Statute  of  Limitations. 
Second,  on  the  title  acquired  through  the  city  of  San  Francisco, 
under  the  well-known  Van  Ness  Ordinance,  and  the  act  of  the 
legislature  confirming  it.  On  a  writ  of  error  to  the  State 
Court,  it  was  sought  to  sustain  jurisdiction  of  the  United  States 
Supreme  Court,  on  the  ground  that  the  title  derived  through 
the  city  depended  upon  the  Act  of  Congress  of  1866,  (14  St. 
4)  granting  the  land  to  the  city  in  trust  for  those  who  held  un- 
der the  ordinances  of  the  city,  State  Statutes,  etc. 

"  The  Court  say :  '  At  the  trial  no  question  was  raised  as  to 
the  validity  or  operative  effect  of  the  act   of  Congress.' 

*  '  The  city  title  was  not  drawn  in  question.  The  real 
controversy  was  as  to  the  transfer  of  that  title  to  the  plaintiffs 
in  error  ;  and  this  did  not  depend  upon  the  '  Constitution,  or  any 
treaty  statute  of,  or  commission  held,  or  authority  exercised  un- 
der, the  United  States.'  Romie  v.  Casanova,  91  U.  S.  R.  380, 
is  a  similar  case.  At  the  present  term  of  the  Supreme  Court, 
in  a  case  which  was  actually  transferred  from  the  State  Court 
to  this  Court,  under  section  two  of  the  Act  of  1875,  the  same 
ruling  was  made.  One  party  claimed  certain  lots  in  San  Fran- 
cisco by  virtue  of  possession,  in  pursuance  of  the  provisions  of 
the  Van  Ness  Ordinance  and  the  Statutes  of  the  State  and  of 
the  United  States  confirming  said  title,  while  the  city  claimed 
the  same  as  being  a  part  (if  the  public  squares  reserved  and  set 
apart  for  public  purposes,  in  pursuance  of  the  same  ordinances 
and  statutes.  A  tier  die  transfer  a  demurrer  was  interposed  to 
the  jurisdiction  of  this  Court,  on  the  ground  that  it  presented 
no  question  arising  under  the  act  of  Congress,  the  rights  of  the 
parties  depending  upon  the  construction  of  the  ordinances  of 
the  city  and  the  State  statutes  alone.  On  the  other  hand,  it  was 
earnestly  urged  that  it  was  necessary  to  construe  the  act  of 
Congress,  in  order  to  find  out  who  the  beneficial  grantee  in- 
tended by  the  act  of  Congress  was.  The  Court,  however,  held 
thul  the  acl  of  Congress  referred  the  question,  as  to  who  was 
entitled  to  the  land,  to  the  city  ordinances  and  the  statutes  of 


§  152  ADVERSE    CLAIMS.  215 

the  State  upon  the  subject ;  and  that  their  rights  must  be  deter- 
mined by  a  construction  of  those  ordinances  and  statutes.  The 
Supreme  Court  affirmed  this  ruling  at  the  present  term,  thus 
holding  that  the  same  principle  adopted  in  relation  to  the  sec- 
tion providing  for  writs  of  error  to  the  State  Courts,  is  also  ap- 
plicable to  cases  of  transfer  from  the  State  to  the  National 
Courts,  under  section  two  of  the  Act  of  1875;  that  is  to  say,  that 
unless  there  is  some  contest  as  to  the  construction  of  the  act  of 
Congress,  there  is  no  jurisdictional  question  in  the  case. 

"  So  with  reference  to  mining  claims,  the  act  of  Congress  grants 
certain  rights  to  those  who  discover,  take  up,  and  work  mining 
claims.  But  it  refers  the  parties  to  the  local  laws  of  the  States 
and  Territories,  and  to  the  rules,  regulations,  and  customs  of 
miners  of  the  district  where  the  mines  are  situated,  for  the 
measure  of  their  rights.  If  a  dispute  arises,  as  in  the  cases 
referred  to,  the  act  of  Congress  refers  the  parties  to  the  ordinary 
tribunals,  to  determine  it  by  the  local  laws  and  customs,  and  not 
by  the  act  of  Congress.  Upon  the  trial  of  the  rights  to  a  mining 
claim,  precisely  the  same  epiestions  are  tried,  and  they  are 
determined  by  the  same  laws  and  customs  that  were  invoked  as 
the  measure  of  the  rights  of  the  parties  before  the  act  of 
Congress  had  been  passed.  Clearly,  the  great  mass  of  these 
cases  cannot  involve  the  discussion  or  any  dispute  as  to  the 
construction  of  any  act  of  Congress  ;  and  when  they  do  not, 
under  the  decisions  cited,  this  Court  is  without  jurisdiction  so 
far  as  this  provision  of  the  act  is  concerned.  Where  the  con- 
troversy is  upon  matters  other  than  the  consideration  of  the 
Constitution  or  an  act  of  Congress,  the  '  correct  decision  '  of 
such  controversy  cannot  possibly  '  depend  upon  the  right  con- 
struction of  either?  No  controversy  can  possibly  arise  under 
the  Constitution  or  an  act  of  Congress,  when  all  parties  agree 
as  to  its  construction.  There  may  be  a  contest  as  to  other 
matters,  but  not  as  to  the  Constitution  or  laws  in  such  cases. 

"  This  action  was  brought  in  the  State  Court  in  Placer  County 
to  recover  for  trespass  upon  a  gravel  gold-mining  claim,  and 
seeking  an  injunction  restraining  the  working  of  the  claim  by 
the  defendant.  There  is  no  fact  alleged,  either  in  the  complaint 
or  the  petition  for  transfer,  indicating  that  there  is  any  cpaestion 
involved  other  than  those  that  usually  arise  in  the  trial  of  .a 


216  ADVERSE    CLAIMS.  §  152 

right  to  a  mining  claim.  And  it  affirmatively  appears  from  the 
views  stated  in  the  petition  that  such  are,  in  fact,  the  questions 
to  be  tried.  It  is  alleged  in  the  petition,  it  is  true,  that  defend- 
ant located  and  held  his  claim  under  the  several  acts  of  Congress 
relating  to  the  subject.  But  this  is  no  more  than  can  be  said, 
in  a  general  sense,  of  all  mining  claims,  since  the  passage  of  the 
several  acts  referred  to.  But,  as  we  have  seen,  that  does  not 
necessarily,  nor  even  ordinarily,  in  this  class  of  cases,  involve 
any  question  of  disputed  construction  of  the  act,  or  any  right  or 
question  which  is  not  to  be  determined  by  the  local  laws,  rules, 
and  customs,  without  reference  to  the  acts  of  Congress,  precisely 
as  they  were  before  there  was  any  such  act  in  existence 

"  The  only  other  allegation  is,  that  the  '  right  to  said  mining 
ground  by  plaintiff  depends  upon  the  laws  of  Congress,  and  the 
right  or  title  of  defendant  to  said  mining  ground  aforesaid  must 
also  be  determined  by  the  acts  of  Congress  under  which  defend- 
ant and  petitioner  claim  title  ;  and  that  the  rights  of  the  plaintiff 
as  ao-ainst  defendant  must  be  determined  under  the  laws  of 
Congress  of  the  United  States.'  This  is,  in  substance,  two  or 
three  times  repeated  ;  but  it  is  only  the  statement  of  a  legal 
conclusion  rather  than  a  fact;  and  a  conclusion  manifestly 
founded  upon  the  general  idea  that  all  mining  claims  are  so 
held,  that  an  action  relating  thereto,  involving  the  rights  of  the 
parties  to  the  mine,  necessarily  arises  under  the  acts  of  Congress 
within  the  meaning  of  the  act  giving  jurisdiction  to  this  Court — 
an  erroneous  conclusion,  if  I  am  right  in  the  views  before 
expressed.  These  allegations  express  merely  the  opinion  of  the 
petitioner  that  a  jurisdictional  question  will  arise.  In  my  judg- 
ment such  averments  arc  insufficient  to  justify  a  transfer,  or 
retaining  the  case  when  brought  here.  The  precise  facts  should 
be  stated,  out  of  which  it  is  supposed  the  jurisdictional  question 
will  arise;  and  what  the  question  is,  and  how  it  will  arise, 
should  be  pointed  out,  so  thai  the  Court  can  determine  for  itself 
whether  the  case  is  a  proper  one  for  consideration  in  the  National 
Courts.  Otherwise  the  administration  of  justice  will  be  greatly 
obstructed,  and  intolerable  inconvenience  be  the  result.  Under 
the  fifth  section  of  the  ad,  it,  is  made  the  imperative  duty  of 
the  Court  at  an;/  sta<je  of  the  j»-<><ce<liixjs,  when  it  appears  that 
'such  suit.  <loes  not  really  and  substantially  involve  a  dispute  or 


§  152  ADVERSE    CLAIMS.  217 

controversy  properly  "within  its  jurisdiction,'  to  stop  the  proceed- 
ing and  remand  the  case.  Where  a  suit  presents  no  disputed 
construction  of  an  act  of  Congress — where  there  is  no  contest  at 
all  as  to  what  the  act  means,  or  what  rights  it  gives — where  the 
only  cpaestions  are  as  to  what  are  the  local  mining  laws,  rules, 
and  customs,  and  as  to  whether  the  parties  have  in  fact  per- 
formed the  acts  required  by  such  local  laws,  rules,  and  customs, 
how  can  it  be  said,  in  any  just  sense,  that  such  a  suit '  really 
and  substantially  involves  a  dispute  or  controversy '  arising  under 
an  act  of  Congress  ?  The  location  of  the  mine  involved  in  the 
case  is  more  than  one  hundred  and  fifty  miles  from  San  Fran- 
cisco, where  the  Court  is  held ;  and  many  other  cases  may  arise 
in  this  State,  Nevada,  and  Oregon,  in  regard  to  claims  lying 
from  three  to  five  hundred  miles  distant  from  the  places  where 
the  National  Courts  are  held,  and  between  which  places  the 
means  of  communication  are  by  no  means  easy  or  cheap.  Gen- 
erally in  this  class  of  cases  the  testimony  rests  mainly  in  parol, 
and  there  is  a  multitude  of  witnesses.  The  expense  of  prose- 
cuting or  defending  such  suits,  at  a  large  distance  from  the 
location  of  the  mines,  would  be  enormous.  If  the  Court  should 
accept  a  petition  containing  a  bare  statement  of  the  opinion 
of  the  petitioner  that  the  rights  of  the  parties  are  derived  under 
an  act  of  Congress,  as  in  this  case,  the  result  in  most  cases 
would  be  that  the  Court  would  not  be  able  to  determine  whether 
the  case  '  really  and  substantially  involves  a  dispute  or  contro- 
versy properly  within  the  jurisdiction  of  the  Court,'  until  the 
close  of  the  testimony,  when  it  would  be  necessary  to  remand 
the  case  at  last.  Such  results  would  largely  obstruct  the  due 
administration  of  justice,  and  work  an  intolerable  inconvenience 
to  honest  suitors.  Besides,  it  Avould  encourage  transfers  of  cases 
over  which  the  Court  has  no  jurisdiction,  by  unscrupulous 
parties,  for  the  very  purpose  of  deterring  the  adverse  party 
from  pursuing  his  rights  by  reason  of  the  delays,  inconvenience, 
and  enormous  expense  of  prosecuting  an  action  of  this  class  at 
a  great  distance  from  home.  These  difficulties  would  be  espe- 
cially onerous  in  cases  relating  to  mining  rights,  where  time  is 
often  as  important  as  the  right,  in  the  several  large  States  of 
the  Pacific  Coast  and  interior  of  the  continent,  and  where  a 
Court  is  held  at  but  one  point.    A  single  State,  in  some  instances, 


218  ADVERSE    CLAIMS.  §§  153-4 

it  must  not  be  forgotten,  contains  more  territory  than  all  the 
Middle  and  New  England  States  together. 

"In  view  of  these,  in  my  judgment,  weighty  considerations, 
therefore,  I  think  it  of  the  highest  importance  to  the  rights  of 
honest  litigants,  and  to  the  due  and  speedy  administration  of 
justice,  that  a  petition  for  transfer  should  state  the  exact  facts, 
and  distinctly  point  out  what  the  question  is,  and  how  and 
where  it  will  arise,  which  gives  jurisdiction  to  the  Court,  so  that 
the  Court  can  determine  for  itself,  from  the  facts,  whether  the 
suit  does  really  and  substantially  involve  a  dispute  or  contro- 
versy properly  within  its  jurisdiction. 

"Whenever,  therefore,  the  record  fails  to  distinctly  show 
such  facts  in  a  case  transferred  to  this  Court,  it  will  be  returned 
to  the  State  Court,  and  under  the  authority  given  by  Section  5, 
at  the  cost  of  the  party  transferring  it.  If  I  am  wrong  in  my 
construction  of  the  act,  and  of  the  recent  decisions  of  the 
Supreme  Court,  the  statute  (Section  5)  happily  affords  a  speedy 
remedy,  by  writ  of  error,  upon  which  this  decision  and  the  order 
remanding  the  case  may  be  reviewed  without  waiting  for  a 
trial,  and  the  cpiestion  may  as  well  be  set  at  rest  in  this  case  as 
in  any  other.  It  is  of  the  utmost  importance  that  a  final  decision 
of  the  fp:iestion  be  had  as  soon  as  possible.  If  counsel  desire,  I 
will  order  the  clerk  to  delay  returning  the  case  till  they  have 
an  opportunity  to  sue  out  and  perfect  a  writ  of  error." 

An  order  was  entered  returning  the  case  to  the  State  Court 
from  whence  it  came,  with  costs  against  the  party  at  whose 
instance  it  was  brought  to  the  United  States  Court. 

§  153.  Cancelation  of  entry  pending  suit. — Where  ad- 
verse claimants  commence  suit  within  the  prescribed  time,  and 
tlii'  suit  is  pending  and  undetermined,  no  entry  should  be  per- 
mitted l>v  either  party  until  a  final  decree  of  the  Court.  If  one 
is  improperly  made  under  these  circumstances,  it  will  be  can- 
celed.1 

§  154.  Stay  of  proceedings. — The  pendency  of  a  suit 
commenced  on  an  adverse  claim,  and  in  proper  time,  operates  as 

i  [nreHldden  Lode    [n  re  Saco  Lode,  Decision  of  the  Commissioner, 

Oct.  23d,  i~>t:;,  Copp's  U,  B.  Mining  Decisions,  228. 


§  155  ADVERSE    CLAIMS.  219 

a  stay  of  all  proceedings  before  the  Department  on  the  applica- 
tion for  patent  until  the  same  is  determined.1 

A  suit  commenced  after  the  expiration  of  the  thirty  days  can- 
not operate  as  a  bar  to  the  issuance  of  a  patent.2 

New  trial  as  ground  of  suspension  of  proceedings. — Where  it 
was  not  shown  that  an  application  for  a  new  trial  in  the  case  of 
an  advei-sc  contest  in  the  Courts  had  been  perfected  in  accord- 
ance with  the  requirements  of  the  local  law,  there  being  as 
conditions  precedent  to  the  granting  of  a  new  trial  the  payment 
of  costs,  and  the  vacating  of  the  judgment  rendered  by  the 
Court  on  the  former  trial,  it  was  held  necessary  for  the  adverse 
claimants  to  show  that  their  motion  for  a  new  trial  had  been 
granted  without  conditions.  The  Office  would  not  recognize 
their  simple  application  for  a  new  trial  as  of  sufficient  force  to 
warrant  a  further  suspension  of  the  case.  A  new  trial  must  be 
granted  unconditionally  to  warrant  such  suspension.3 

§  155.  Filing  consent  to  judgment. — A  party  may  waive 
his  claim  to  the  premises  adversely  claimed,  and  debar  him- 
self from  asserting  his  right  to  the  same  in  the  future.  If  an 
applicant  files  a  formal  disclaimer  of  his  right,  title,  and  interest 
to  the  premises  described  in  the  complaint  of  the  adverse  claim- 
ant, and  consents  that  the  plaintiff  may  have  judgment  according 
to  his  prayer,  the  plaintiff  obtains  all  he  seeks,  and  the  suit  is 
virtually  ended  and  the  controversy  settled.  No  reason  then 
exists  why  a  patent  should  not  issue  for  the  tract.  The  aban- 
donment of  the  surface  ground,  or  of  the  entire  premises  in  contro- 
versy before  the  Department,  and  the  continued  prosecution  of 
the  suit  involving  the  same  premises  before  a  Court  of  compe- 
tent jurisdiction,  are  not  justified  by  a  correct  interpretation  of 
the  law  ;  but  when  the  applicant,  defendant  in  a  suit  by  an  ad- 
verse claimant  in  a  Court  of  competent  jurisdiction,  waives  his 

1  Application  of  Lambard,  In  re  Earl  Mine  &  Mt.  Pleasant  Mine,  Decision 
Assistant  Secretary,  Feb.  17th,  1S77,  3  Copp's  Land-owner,  194;  Ibid.  Dec.  26th, 
1876;  King  of  the  West  v.  City  Rock  Lodes,  and  Ibid.  Jan.  3d,  1S77;  In  re  Last 
Chance  Mine,  No.  2. 

2  Melton  v.  Lambard,  January  Term,  1876,  Supreme  Court  of  California,  De- 
cision of  Acting  Secretary,  Feb.  17th,  1877,  3  Copp's  Land-owner,  194;  Morse  v. 
Streeter,  Copp's  U.S.  Mining  Decisions,  127. 

3  In  re  Bank  of  Commerce  Lode,  Decision  Acting  Commissioner,  Nov.  18th, 
1872,  Copp's  U.  S.  Mining  Decisions,  149. 


220  ADVERSE    CLAIMS.  §  156 

claim,  confesses  judgment,  and  thus  acknowledges  the  plaintiff's 
superior  right  to  the  tract  in  dispute,  he  has  done  all  that  can  be 
required  of  him  in  thus  ending  the  controversy,  and  should  be 
no  longer  deprived  of  a  patent  to  premises  to  which  he  has 
shown  himself  legally  entitled,  and  which  are  not  embraced 
within  the  limits  of  the  adverse  claim.1 

§  156.  Laches  in  bringing  suit. — Suits  must  be  commenced 
within  the  time  prescribed  after  notification.  Laches  will  be 
fatal  to  the  claim.  Where  seven  months  elapsed  after  the 
attorney  received  information  that  a  decision  had  been  rendered 
directing  the  adverse  claimant  to  bring  suit,  and  no  suit  was 
commenced  against  the  applicant  for  patent,  the  Office  declined 
to  further  delay  proceedings  upon  the  application.2 

The  time  for  filing  adverse  claims  will  not  be  extended,  nor 
can  they  be  filed  nunc  pro  tunc? 

Where  a  party  makes  an  application  for  patent  and  shows 
compliance  with  the  statute,  his  application  for  patent  will  not 
be  indefinitely  suspended  at  the  instance  of  parties  who  show 
no  desire  to  have  their  alleged  adverse  interests  finally  determined 
by  the  Courts.  Where  the  application  had  been  suspended 
nearly  four  years  at  the  instance  of  the  adverse  claimants,  and 
no  suit  was  pending  which  was  commenced  within  the  time 
allowed,  the  only  suit  pending  having  been  commenced  more 
than  eighteen  months'  after  a  decision  was  rendered,  the  appli- 
cation was  allowed  to  proceed. 

The  adverse-  claimants  had  also  entered  their  discontinuance 
of  the  suit ;  whereupon  judgment  was  rendered  for  defendant 
afterward,  but  not  till  eighteen  months  after  the  time  allowed 
for  another  suit.4 

i  In  re  Application  of  Lambard,  Decision  Acting  Secretary,  Feb.  17th,  1877,  3 
Copp's  Land-owner,  194;  Ibid,  Dec.  26th,  187(5;  King  of  the  West  v.  City  Rock 
Lodes,  and  [bid.  Jan.  3d,  1877;  In  re  Last  Chance  Mine,  No.  2. 

-  In  n-  Montana  Flaming  and  Mining  Company,  Decision  of  Commissioner, 
Ah^.  18th,  1873,  Copp'B  l'.  S.  Mining  Decisions,  216. 

8  In  re  Jones  8t  Matteson  Lode,  Decision  of  Commissioner,  Aug.  19th,  1873, 
Copp'8  U.  8.  Mining  Decisions. 'Jl 8;  In  re  Unicorn  Lode,  Decision  of  Commis- 
sioner, Oopp  -  ''.  s.  Mining  Decisions,  194,  April  18th,  1873. 

•'  Wood  <•.  Hyde,  Decision  of  Commissioner,  July  24th,  1874,  1  Copp's  Land- 
owner, ii7. 


§§  157-8  ADVERSE    CLAIMS.  221 

§  157.  Prosecution  of  suits  by  adverse  claimants — 
Diligence. — The  law  not  only  requires  an  adverse  claimant  to 
commence  proceedings  in  a  Court  of  competent  jurisdiction,  but 
also  to  prosecute  the  same  with  reasonable  diligence  to  final 
judgment. 

A  failure  on  the  part  of  an  adverse  claimant  to  comply  with 
either  of  these  requirements  is  held  to  be  a  waiver  of  his  ad- 
verse claim.  Where  more  than  three  years  had  elapsed  since  a 
suit  was  commenced,  and  one  special  term  and  six  regular  terms 
of  the  Court  had  been  held,  and  no  trial  of  the  cause  had,  the 
only  orders  entered  being  those  of  continuance,  the  applicants 
were  required  to  furnish  a  certificate  of  the  clerk  of  the  Court 
si  lowing  at  whose  instance  the  several  continuances  were  made. 
And  in  case  it  should  appear  from  such  certificate  that  the 
several  continuances  were  granted  at  the  instance  and  request 
of  the  adverse  claimants,  the  applicants  were  ordered  to  be 
allowed  to  make  entry  of  their  claims,  should  no  appeal  be  taken 
from  the  decision  of  the  Commissioner  within  sixty  days  from 
the  date  of  the  notification  to  all  parties  in  interest.1 

§  158.   Abandonment  of  portion  of    adverse   claim. — 

Applicants  may  abandon  and  file  an  abandonment  of  that  por- 
tion of  a  claim  claimed  adversely,  and  which  is  represented  and 
described  in  the  plat  filed  with  the  adverse  claim ;  the  former 
will  be  permitted  to  receive,  after  survey,  a  patent  for  the 
remainder  of  the  premises  described  in  their  application,  as  in 
such  case  no  conflict  exists.2 

If  a  party  files  an  adverse  claim  to  an  application,  and  for  any 
reason  concludes  not  to  prosecute  the  same,  he  may  file  with  the 
register  and  receiver  a  written  statement  of  the  fact  that  he 
does  not  intend  to  longer  contest  the  right  of  the  applicant,  in 
which  event  all  the  papers  filed  by  the  applicant  and  the  adverse 
claimants  are  to  be  transmitted  to  the  General  Land  Office  after 
the  entry  has  been  made.  This  abandonment  must  be  filed 
before  suit  is  commenced. 

Papers   filed    by    adverse    claimaints    must    be   received   by 

1  Clark  v.  Calkins,  Decision  of  Commissioner,  3  Copp's  Land-owner,  98. 

2  In  re  Fairmount  Lode  and  Mill-Site ;  In  re  Fenian  Star  Lode,  Decision  of 
Commissioner,  Aug.  4th,  1874;  1  Copp's  Land-owner,  82. 


222  ADVERSE    CLAIMS.  §  159 

the  register,  and  when  papers  have  once  been  filed  with  the 
register  they  become  part  of  the  record,  and  can  neither  be 
withdrawn  nor  returned,  but  must  be  transmitted  to  the  General 
Land  Office  with  the  other  papers  in  the  case.1 

§  159.  Filing  an  abandonment  of  surface  ground  pend- 
ing conflict,  not  a  termination  of  contest. — Upon  filing  an 
adverse  claim,  the  provision  of  the  law  is  explicit  that  all  the 
proceedings,  except  the  publication  of  notice  and  the  making 
and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  final 
adjudication  of  the  case  by  the  authorized  tribunal,  or  a  waiver 
of  the  adverse  claim.  The  provision  of  the  law  that  in  case 
two  lodes  intersect,  the  prior  location  shall  be  entitled  to  the  ore 
or  mineral  contained  within  the  space  of  intersection,  does  not 
release  the  Department  from  the  duty  of  abstaining  from  all 
further  proceedings  in  the  case,  nor  justify  the  issuing  of  a 
patent  embracing  the  premises  in  controversy,  with  the  excep- 
tion of  immaterial  portions  abandoned  by  the  applicants  as 
the  surface  ground.  It  is  considered  clear  that  it  was  the  in- 
tention of  Congress  to  refer  all  questions  arising  from  a  conflict 
of  claims,  where  a  suit  is  duly  commenced,  to  a  Court  of  com- 
petent jurisdiction,  in  the  possession  of  the  power  necessary  to 
ascertain  the  truth  and  facts  relating  to  the  same,  a  power  not 
possessed  by  the  Department ;  and  it  is  therefore  held  to  be  the 
duty  of  the  Department  to  refrain  from  any  act  that  would  in 
any  manner  interfere  with  the  adjudication  of  the  controversy. 

Where,  therefore,  the  Commissioner  held  that  by  reason  of  aban- 
donment, "  no  necessity  exists  for  a  further  suspension  of  pro- 
ceedings upon  the  application  for  patent,"  his  decision  was 
reversed  upon  the  ground  that  the  adverse  claim  was  filed;  that 
the  possession  of  the  surface  ground  in  dispute  might  be  of  the 
least  importance,  a  mere  incident,  that  other  and  far  more  im- 
portant questions  might  be  involved,  (the  location  of  the  lode, 
for  example)  and  to  allow  the  defendants  to  obtain  the  advantage 
to  be  derived  from  the  possession  of  a  patent  from  the  Govern- 
ment simply  by  filing  in  the  office  an  abandonment  of  the  sur- 

1  Jefferson  Mining  Co.  u  Pennsylvania  Mining  Co.;  In  ro  Pennsylvania  Quartz 
Mine,  i  Copp'a  Land-owner,  60;  Decision  of  Commissioner,  July  21st,  1874- 


§§  1G0-1  ADVERSE    CLAIMS.  223 

face  ground,  was  considered  an  evasion  of  both  the  intent  and 
letter  of  the  law.1 

§  160.   Cross-applications — Delay  in  adverse  claim. — In 

the  case  of  the  Prince  of  Wales  Mine  v.  Highland  Chief  Mine, 
Utah  Territory,2  there  were  cross-applications  and  conflicting 
adverse  claims.  The  questions  were  solved  by  applying  the 
doctrine  of  prior  location.  It  appeared  that  the  Prince  of  Wales 
Mine  was  first  located  and  recorded,  and  that  it  made  the  first 
application  for  patent,  and  that  the  Highland  Chief  filed  an  ad- 
verse claim  thereto  after  the  period  of  publication  had  expired. 
The  Secretary  of  the  Interior  said  : 

"If  this  application  and  adverse  claim  had  been  forwarded 
to  the  Commissioner  by  the  local  officers,  as  they  were  bound  to 
do  under  the  instructions,  the  adverse  claim  would  have  been 
rejected  because  not  filed  within  the  period  of  publication.  The 
fault  was  not  that  of  the  Prince  of  Wales,  and  it  ought  not  to 
suffer  by  the  neglect  of  duty  of  any  official.  (Railroad  v.  Smith, 
9  Wall.  99.) 

"  The  Highland  Chief  afterwards  made  application  for  patent 
while  that  of  the  Prince  of  Wales  was  pending.  The  Prince 
of  Wales  filed  an  adverse  claim  after  the  period  of  publication 
had  expired,  and  the  Highland  Chief  for  that  reason  caused  its 
rejection.  In  other  words,  the  Highland  Chief,  by  the  decision 
of  this  Department,  struck  out  and  got  rid  of  the  adverse  claim 
of  the  Prince  of  Wales,  for  the  very  reason  which  should  have 
excluded  its  adverse  claim  to  the  Prince  of  Wales  application. 
The  Prince  of  Wales  had  the  prior  right  and  the  prior  location, 
and  it  was  manifest  error  in  this  Department  to  allow  the  High- 
land Chief  to  transpose  the  condition  of  the  parties,  and  thereby 
materially  change  the  rights  of  the  contending  parties." 

§  161.  Fees  on  filing  adverse  claim — Claim  filed  with- 
out payment  of  fees,  how  treated. — Section  2238  of  the 

1Ayers  v.  Foley,  Decision  of  Secretary,  January  3d,  1877,  3  Copp's  Land- 
owner, 19G;  Reversing  Decision  of  Commissioner  S.  C,  3  Copp's  Land-owner, 
0(>,  sub  nom.;  Sacramento  Mining  Co.  v.  Last  Chance  No.  2  Mining  Co.,  reversing 
also  on  that  point  case  of  Antelope  Lode,  Decision  of  Secretary,  April  1st, 
1875,  2  Copp's  Land-owner,  2,  and  approving  King  of  the  "West  Lode,  Decision 
of  Secretary,  December  26th,  187G. 

2  Decision  of  the  Secretary  of  Interior,  April  1st,  1875,2  Copp's  Land-owner,  2. 


224  ADVERSE    CLAIMS.  §  162 

Revised  Statutes  provides  that  the  fees  for  filing  and  acting 
upon  each  adverse  claim  shall  be  five  dollars  for  the  register, 
and  a  like  amount  for  the  receiver.  The  eighty-ninth  para- 
graph of  circular  instructions  from  the  Land  Office  under 
the  statute,  provides  that  the  fees  shall  be  paid  at  the  time  of 
filing  the  adverse  claim.  An  adverse  claim  cannot  be  con- 
sidered as  filed  until  the  party  who  desires  to  assert  an  adverse 
claim  against  an  application  for  patent  has  performed  all  the 
acts  required  of  him  by  the  Statute.  The  local  officers  are 
required  to  report  to  the  Commissioner  of  the  General  Land 
Office  the  amounts  received  for  filing  and  acting  upon  adverse 
claims,  and  to  place  said  sums  to  the  credit  of  the  United  States, 
and  they  have  no  authority  of  law  to  receive  and  place  on  file 
any  adverse  claims,  until  the  legal  fees  for  such  filing  have  been 
paid  in  full.  Parties  who  fail  to  comply  with  the  plain  and 
positive  requirements  of  the  law  in  asserting  their  adverse 
claims,  cannot  thereby  prejudice  the  rights  of  applicants  who 
strictly  comply  with  the  statute.  Where,  after  the  papers  had 
been  received,  and  on  the  succeeding  day,  the  adverse  claimant 
was  telegraphed  that  the  papers  had  been  received  without  the 
fees,  and  he  was  instructed  to  send  the  fees,  or  the  adverse 
claim  could  not  be  filed.  Two  days  still  remained  within  which 
the  adverse  claimants  might  have  completed  their  case ;  but  the 
required  fees  were  not  transmitted  until  the  fifth  of  November, 
five  days  after  the  expiration  of  the  sixty  days'  notice  by  pub- 
lication, and  after  the  period  within  which  adverse  claims  must 
be  filed;  for  this  l'eason  said  papers  were  not  considered  as  an 
adverse  claim.  Such  a  filing  can  only  be  considered  as  a  pro- 
test made  for  the  purpose  of  showing  that  the  applicant  has 
failed  to  comply  with  the  mining  act.1 

§  162.    Miscellaneous. 

Amendment  of  adverse  claim. — An  adverse  claim  cannot  be 
amended  after  filing,  so  as  to  embrace  a  larger  portion  of  the 
premises  applied  for  than  that  described  in  the  original  adverse 
claim.2 

•  Tn  r<-  Omaha  Gold  Quart/.  Mine,  Decision  of  Acting  Commissioner,  May  12th, 
1876,  3  Copp  Land-owner,  .'Ml.  Bee  Rev.  Stats.  Sec.  2238;  Instructions  Feb.  1st, 
1H77,  Subdivision  89, 

-  Decision  of  Com.  Jan.  14th,  1873,  Copp's  U.  S.  Mining  Decisions,  156. 


§  1G2  ADVERSE    CLAIMS.  225 

Evidence  of  adverse  claim. — An  affidavit  alleging  that  the 
contestants  had  been  owners  of  certain  portions  of  the  claim  for 
more  than  three  years,  and  that  they  had  worked  the  ground 
for  several  years,  is  not  sufficient.  It  should  state  in  detail 
the  nature  of  the  adverse  claim,  where  and  how  it  originated, 
whether  by  purchase  or  location,  etc.1 

Withdrawal  of  protest  by  cotenant. — Where  one  cotenant 
has  made  out  a  prima  facie  adverse  showing  to  an  application, 
he  cannot  be  denied  his  right  and  privilege  of  having  his  ad- 
verse rights  adjudicated  in  a  Court  of  competent  jurisdiction, 
by  reason  of  other  cotenants  having  declared  their  intention  to 
make  no  further  contest.  In  such  a  case,  time  will  be  given  to 
institute  proceedings  in  a  Court  of  competent  jurisdiction,  to 
determine  the  rights  of  possession  to  the  premises.2 

Questions  presented  for  adjudication  by  the  Courts. — In  or- 
der to  ascertain  which  party  is  entitled  to  a  patent,  it  is  only 
necessary  to  determine  which  party,  at  the  time  of  its  issue,  was 
the  rightful  owner  of  the  mining  claim  in  question,  as  against 
everybody  but  the  United  States,  under  the  laws,  rules,  customs, 
and  decisions  of  Courts  in  force  at  the  time  in  the  locality 
embracing  it.  The  party  who  can  maintain  his  right  to  the 
claim  in  the  Courts  of  the  country,  as  against  any  person  but 
the  United  States,  under  those  local  laws,  is  the  party  upon 
whom  Congress  intended  to  confer  the  right  to  purchase,  no 
matter  how  that  right  originated,  if  under  those  laws  he  has 
the  present  right.  The  object  of  the  suit  is  simply  to  ascertain 
the  party  who  has  the  right  to  the  claim  under  the  laws  of  the 
State  and  local  rules  and  customs,  for  that  person,  when  found, 
is  the  party  upon  whom  the  law  confers  the  privilege — the 
right  to  purchase.3  In  suits  to  ascertain  this  inquiry,  local  stat- 
utes of  limitation  apply,  and  are  recognized  by  the  act. 

Papers  to  be  fled. — The  adverse  claimant  should  file  with  the 
other  papers  which  go  to  make  up  his  adverse  claim,  either  an 

Thomas  v.  Richards,  Decision  of  Secretary,  March  19th,  1872,  Copp's  TJ.  S. 
Mining  Decisions,  81. 

2 In  re  Harris  Lode,  Decision  Commissioner,  Fehruary  12th,  1873,  Copp's  U. 
S.  Mining  Decisions,  158. 

8  420  Mining  Co.  v.  Bullion  Mining  Co.  3  Sawyer  C.  C.  034.  See  further,  as  to 
when  a  judgment  in  a  suit  to  try  the  right  of  possession  of  a  mining  claim  is 
res  adjudicata,  S.  C.  9  Nevada,  240. 

W.  C— 15. 


226  ADVERSE    CLAIMS.  §  162 

abstract  of  the  title  to  the  premises  claimed,  together  with  a 
copy  of  the  original  notice  of  location,  or  certified  copies  of  the 
original  notice  of  location  and  the  deeds  of  conveyance,  tracing 
the  right  of  possession  from  the  original  locators  to  such  adverse 
claimant.  Where  an  abstract  of  title  is  furnished  instead  of 
copies  of  the  original  deeds,  such  abstract  should  be  full  and 
complete,  attested  by  the  seal  of  the  recorder.1 

Applicants  for  different  lodes  may  become  adverse  claimants 
to  each  other,  where  there  is  a  claim  that  the  two  lodes  are 
identical.2 

Negligence. — A  case  having  been  once  suspended  and  car- 
ried to  the  Courts  for  adjudication  of  adverse  claims,  and  hav- 
ing been  there  dismissed  for  want  of  attention  and  presentation 
on  the  part  of  the  adverse  claimants,  cannot  be  stayed  a  second 
time  for  such  purpose,  but  must  proceed  upon  the  application 
fur  patent.5 

An  adverse  claim  which  does  not  claim  the  mining  ground 
included  in  the  application  for  a  patent,  but  simply  states  that 
they  have  a  right  to  construct  a  dam,  ditch,  and  bedrock  flume, 
through,  on,  or  across  it,  to  connect  with  their  dumping  ground, 
is  not  an  adverse  claim  within  the  meaning  of  the  act.4 

A  party  having  no  interest  in  the  mine,  and  no  authority  to 
represent  parties  who  had,  is  in  no  position  to  assert  an  adverse 
claim.5 

Caveat  against  issuing  'patents. — Whatever  objections  third 
parties  desire  to  make  to  the  issuance  of  a  patent  for  a  mining 
claim,  must  be  filed  with  the  register  and  receiver  within  the 
prescribed  time.  At  the  expiration  of  that  time,  if  no  adverse 
claim  lias  been  filed,  the  matter  is  solely  between  the  United 
Stales  and  the  applicant  for  the  patent.0 

I  Decision  of  Commissioner,  October  31st,  1873,  Copp's  U.  S.  Mining  Decisions, 
232 

-  In  re  Ajax  or  Big  Indian  Lode,  Decision  Commissioner,  September  21st,  18G9, 
Copp's  I'.  S.  Mining  Decisions,  22. 

::In  rc  Mountain  City  Code,  Decision  Commissioner,  November  17th,  18G0, 
Copp's  O.  S.  Mining  Decisions,  23. 

in  rc  Application  of  Taylor  &  Smith,  Decision  of  Commissioner,  April  16th, 
1871,  Copp's  c.  s.  Mining  Decisions,  42. 

■'■In  i>  Uger  Lode,  Decision  Commissioner,  March  4th,  1872,  Copp's  U.  S. 
Mining  I  decisions,  80. 

1  I  n  re  Flagstaff  Case,  December  16th,  1872,  Copp's  U.  S.  Mining  Decisions,  153. 


§  162  ADVERSE    CLAIMS.  227 

In  the  matter  of  proof  of  citizenship  in  setting  up  adverse 
claims,  the  law  is  complied  with  if  the  citizenship  is  properly 
alleged,  and  the  fact  is  not  controverted.1 

A  public  highway  is  not  an  adverse  claim  where  there  is  no 
claim  to  the  mine.  Should  a  patent  be  issued  upon  the  appli- 
cation, the  rights  of  all  parties  to  the  use  of  highways  are  as 
secure  under  the  law  as  if  the  title  had  remained  in  the  Govern- 
ment.2 

Wliere  suit  has  been  decided. — When  the  register  and  receiver 
has  been  directed  to  suspend  proceedings  awaiting  the  final 
determination  of  a  suit  commenced  on  an  adverse  claim  asserted 
against  the  application  for  a  patent,  and  the  suit  has  been 
decided  in  favor  of  the  applicant,  a  copy  of  the  decree  filed  with 
the  register  and  receiver,  and  a  certificate  of  the  clerk  of  the 
Court  that  no  suit  is  pending  against  said  applicant,  brought  by 
the  adverse  claimant,  bringing  into  question  the  title  to  said 
property,  should  be  filed.  Upon  the  filing  of  these  papers  with 
the  register  and  receiver,  they  will  allow  the  entry  to  be  made.? 

Rights  of  foreign  corporations. — A  foreign  corporation  pur- 
chasing a  patent  issued  to  citizens  of  the  United  States,  takes 
all  the  rights  and  is  entitled  to  all  the  privileges  that  would 
have  accrued  to  the  original  patentees,  had  they  retained  their 
interest  in  the  mine.  An  agent  of  such  foreign  corporation  is 
to  be  treated  precisely  as  would  the  patentee,  so  far  as  rights 
are  concerned,  under  the  United  States  patent.4 

1  Magnolia  M.  Co.  v.  Magnolia  East  &  West  Co.,  Decision  of  Commissioner 
November  27th,  1874,  1  Copp's  Land-owner,  135  ;  Decision  of  Secretary,  July 
28th,  1875,  2  Copp's  Land-owner,  68;  Eureka  Co.  v.  Jenny  Lind  Co.,  Decision  of 
Secretary,  Copp's  TJ.  S.  Mining  Decisions,  169,  173,  177,  178  ;  Kempton  Case, 
Decision  of  Secretary,  January  2d,  1875. 

2  Decision  of  Commissioner,  December  29th,  1871,  Copp's  TJ.  S.  Mining  De^ 
cisions,  76. 

3  In  re  Alger  Lode,  Decision  Commissioner,  October  30th,  1873,  Copp's  TJ.  S. 
Mining  Decisions,  232. 

4InreSearle  Lode,  Decision  of  Commissioner,  October  8th,  1S75,  2  Copp's 
Land-owner,  115;  llev.  Stat.  Sec.  2326,  last  clause. 


228  PLACER    CLAIMS.  §§  163-4 


CHAPTER  X. 

PLACER  CLAIMS— SURVEY,  ENTRY,  AND  PATENT— DIMENSIONS  OP 
CLAIMS- SUBDIVISIONS  OP  TEN-ACRE  TRACTS— EVIDENCE  OP 
POSSESSION— MODE  OP  OBTAINING  PATENT. 

§  1G3.  Couf ormity  of  placer  claims  to  surveys — Limits  and  boundaries. 

§  164.  Subdivision  of  ten-acre  tracts — Extent  of  placer  locations. 

§  165.  Survey  of  placer  claims — Limitations. 

§  166.  Evidence  of  possession — Sufficient  to  establish  right  to  patent, 

§  167.  Proceedings  for  patent  for  placer  claims 

§  168.  Details  of  procedure. 

§  169.  Description  in  the  notice. 

§  170.  Entry  and  survey  of  placer  claims  under  the  Act  of  1866. 

§  171.  Survey  of  placer  claims  under  the  Acts  of  1856,  1870. 

§  172.  Survey  and  entry  under  the  Act  of  1870. 

§  173.  Quantity  of  placer  ground  subject  to  location. 

§  174.  Proofs  necessary  to  establish  possessory  rights. 

§  175.  Placer  ground  located  after  May  10th,  1872. 

§  176.  Conflicting  claims— Placer  and  lode  claims. 

§  177.  Miscellaneous  provisions. 

§  163.  Conformity  of  placer  claims  to  surveys — Limits 
and  boundaries. — Sec.  2329  of  the  Revised  Statutes  reads  as 
follows:  "Claims  usually  called  'placers,'  including  all  forms 
of  deposit,  excepting  veins  of  quartz,  or  other  rock  in  place, 
shall  be  subject  to  entry  and  patent,  under  like  circumstances 
and  conditions,  and  upon  similar  proceedings,  as  are  provided 
for  vein  or  lode  claims ;  but  where  the  lands  have  been  pre- 
viously surveyed  by  the  United  States,  the  entry  in  its  exterior 
limits  shall  conform  to  the  legal  subdivisions  of  the  public 
lands."1 

§  164.  Subdivision  of  ten-acre  tracts — Extent  of  placer 
locations. — Sec  2:].'!D  of  ihe  Revised  Statutes  reads  :  "Legal 
Subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre  tracts ; 
and  I  wo  or  more  persons,  or  association  of  persons,  having  contigu- 

1  Rev.  Stats.  2329;  Bee.  12,  (first  clause)  Act  1870,  1G  U.  S.  Stats.  217;  See  Sees. 
(Eev.  Stats.)2319,  2330,  2331,  2334. 


§  165  PLACER    CLAIMS.  229 

ous  claims  of  any  size,  although  such  claims  may  be  less   than 

ten  acres  each,  may  make  joint  entry  thereof;    but  no  location 

of  a  placer  claim,  made   after  the  9th  day  of  July,  1870,  shall 

exceed  1G0  acres  for  any  one  person  or  association  of  persons, 

which  location  shall  conform  to  the  United  States  surveys  ;  and 

nothing*  in  this  section  contained  shall  defeat  or  impair  any  bona 

fide  pre-emption  or  homestead  claim  upon  agricultural  lands,  or 

authorize  the  sale  of  the  improvements  of  any  bona  fide  settler 

to  any  purchaser."  * 

• 

§  165.   Survey  of   placer  claims — Limitation  of.— Sec. 

2331  of  the  Revised  Statutes  is  as  follows :  "  Where  placer 
claims  are  upon  surveyed  lands,  and  conform  to  legal  subdivis- 
ions, no  further  survey  or  plat  shall  be  required,  and  all  placer 
mining  claims  located  after  the  10th  day  of  May,  1872,  shall 
conform  as  near  as  practicable  with  the  United  States  system 
of  public  land  surveys,  and  the  rectangular  subdivisions  of 
such  surveys,  and  no  such  location  shall  include  more  than 
twenty  acres  for  each  individual  claimant ;  but  where  placer 
claims  cannot  be  conformed  to  legal  subdivisions,  survey  and 
plat  shall  be  made  as  on  unsurveyed  lands  ;  and  where  by  the 
segregation  of  mineral  land  in  any  legal  subdivision  a  quantity 
of  agricultural  land  less  than  forty  acres  remains,  such  fractional 

1  Rev.  Stats.  2330. 

See.  12  of  the  Act  of  1870,  10  TJ.  S.  Stats.  217,  read:  "That  claims,  usually 
called  'placers,'  including  all  forms  of  deposit,  excepting  veins  of  quartz, 
other  rock  in  place,  shall  be  subject  to  entry  and  patent  under  this  act,  or 
under  like  circumstances  and  conditions,  and  upon  similar  proceedings,  as  are 
provided  for  vein  or  lode  claims;  Provided,  That  where  the  lands  have  been 
previously  surveyed  by  the  United  States,  the  entry  in  its  exterior  limits 
shall  conform  to  the  legal  subdivisions  of  the  public  lands,  no  further  survey 
or  plat  in  such  case  being  required,  and  the  lands  may  be  paid  for  at 
the  rate  of  two  dollars  and  fifty  cents  per  acre;  Provided  further,  That  legal 
subdivisions  of  forty  acres  may  be  subdivided  into  ten-acre  tracts;  and  that  two 
or  more  persons  or  association  of  persons,  having  contiguous  claims  of  any  size, 
although  such  claims  may  be  less  than  ten  acres  each,  may  make  joint  entry 
thereof;  And  provided  further,  That  no  location  of  a  placer  claim,  hereafter 
made,  shall  exceed  1G0  acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys  ;  and  nothing  in  this 
section  contained  shall  defeat  or  impair  any  bona  iido  pre-emption  or  home- 
stead claim  upon  agricultural  lands,  or  authorize  the  sale  of  the  improvements 
of  any  bona  ride  settler  to  any  purchaser." 


230  PLACER    CLAIMS.  §  166 

portion  of  agricultural  land  may  be  entered  by  any  party  quali- 
fied by  law,  for  homestead  or  pre-emption  purposes." * 

§  166.  Evidence  of  possession  sufficient  to  establish 
right  to  patent. — Section  2332  of  the  Revised  Statutes  reads : 
"Where  such  person  or  association,  they  and  their  grantors,2  have 
held  and  worked  their  claims  for  a  period  equal  to  the  time  pre- 
scribed by  the  Statute  of  Limitations  for  mining  claims  of  the 
State  or  Territory  where  the  same  may  be  situated,3  evidence 
of  such  possession  and  working  of  the  claims  for  such  period  • 
shall  be  sufficient  to  establish  a  right  to  a  patent  thereto  under 
this  chapter,  in  the  absence  of  any  adverse  claim ;  but  nothing 
in  this  chapter  shall  be  deemed  to  impair  any  lien  which  may 
have  attached  in  any  way  whatever  to  any  mining  claim  or  prop- 
erty thereto  attached  prior  to  the  issuance  of  a  patent."4 

i  Rev.  Stats.  2331. 

Sec.  10  of  the  Act  of  1872,  17  U.  S.  Stats.  94,  was  as  follows:  "That  the  act  en- 
titled, '  An  Act  to  ainend  an  act  granting  the  right  of  way  to  ditch  and  canal 
owners  over  the  public  lands,  and  for  other  purposes,'  approved  July  9th,  1870, 
shall  be  and  remain  in  full  force,  except  as  to  the  proceedings  to  obtain  a  patent, 
which  shall  be  similar  to  the  proceedings  prescribed  by  Sees.  G  and  7  of  this  act, 
for  obtaining  patents  to  vein  or  lode  claims;  Imt  where  said  placer  claims  shall 
be  upon  surveyed  lands,  and  conform  to  legal  subdivisions,  no  further  survey 
or  plat  shall  be  required,  and  all  placer  mining  claims  hereafter  located  shall 
conform  as  near  as  practicable  with  the  United  States  system  of  public  land 
surveys,  and  the  rectangular  subdivisions  of  such  surveys,  and  no  such  location 
shall  include  more  than  twenty  acres  for  each  individual  claimant,  but  where 
placer  chums  cannot  be  conformed  to  legal  subdivisions,  survey  and  plat  shall 
be  made  as  on  unsurveyed  lands;  Provided,  That  proceedings  now  pending  may 
be  prosecuted  to  their  final  determination  under  existing  laws;  but  the  provis- 
ions  of  this  act,  when  not  in  conflict  with  existing  laws,  shall  apply  to  such 
And  provided  also,  That  where,  by  the  segregation  of  mineral  land  in  any 
]  ■_■  ]  subdivision  a  quantity  of  agricultural  land  less  than  forty  acres  remains, 
said  fractional  port  ion  of  agrieuH  ural  land  may  be  entered  by  any  party  quali- 
fied l>y  law,  for  homestead  or  pre-emption  purposes."    (See,  also,  Rev.  Stats.  2329, 

2334.) 

Sec.  l'iof  the  Act  of    1870,   16  V.  S.  Stats.  217,   read:    "That  so  much  of   the 
Art  of  March  3d,  L853,  entitled,  '  Au  Act  to  provide  for  the  survey  of  the  public ' 

lands  in  California,  I  lie  grunl  ing  of   pre-empt  ion  rights,  and  for  other  purposes,' 

as  provides  thai  none  other  than  township  lines  shall  be  surveyed  where  the 
Lands  are  mineral,  is  hereby  repealed.     And  the  public  surveys  are  hereby  ex- 
tended over  all  such  Lands;  Provided,    Thai   all  .subdividing  of  surveyed  lands 
into  i.ii    I.    ithan  LG0 acres,  maj  be  done  by  county  and  local  surveyors  at  the 
:  the  claimants;  And  provided  furtlier,  That  nothing  herein  contained 
Hhall  require  the  survey  of  waste  or  useless  lands." 
I:. ■■.    :  tats.  2332. 
.  i   See.  2324,  Rev.  Stats. 

13  of  1  be  Act  of  1870,  1G  U.  S.  Stats.  217,  reads  :  "  Sue.  13.— That  where 


§§  167-8  PLACER    CLAIMS.  231 

§  167.  Proceedings  for  patent  for  placer  claims. — Sec- 
tion 2333  of  the  Revised  Statutes  is  in  the  following  language : 
"  Where  the  same  person,  association,  or  corporation,  is  in  pos- 
session of  a  placer  claim,  and  also  a  vein  or  lode  included 
within  the  boundaries  thereof,  application  shall  be  made  for 
a  patent  for  the  placer  claim,  with  the  statement  that  it  includes 
such  vein  or  lode,  and  in  such  case  1  a  patent  shall  issue  for  the 
placer  claim,  subject  to  the  provisions  of  this  chapter,  including 
such  vein  or  lode,  upon  the  payment  of  five  dollars  per  acre  for 
such  vein  or  lode  claim,  and  twenty-five  feet  of  surface  on  each 
side  thereof.  The  remainder  of  the  placer  claim,  or  any  placer 
claim  not  embracing  any  vein  or  lode  claim,  shall  be  paid  for  at 
the  rate  of  two  dollars  and  fifty  cents  per  acre,  together  with 
all  costs  of  proceedings  ;  and  where  a  vein  or  lode,  such  as  is 
described  in  Sec.  2320,  is  known  to  exist  within  the  boundaries 
of  a  placer  claim,  an  application  for  a  patent  for  such  placer 
claim  which  does  not  include  an  application  for  the  vein  or  lode 
claim  shall  be  construed  as  a  conclusive  declaration  that  the 
claimant  of  the  placer  claim  has  no  right  of  possession  of  the 
vein  or  lode  claim ;  but  where  the  existence  of  a  vein  or  lode  in 
a  placer  claim  is  not  known,  a  patent  for  the  placer  claim  shall 
convey  all  valuable  mineral  and  other  deposits  within  the  bound- 
aries thereof."2 

§  168.  Details  of  procedure. — The  provisions  and  regula- 
tions for  obtaining  patents  to  veins  or  lodes  apply  with   some 

said  person  or  association,  they  and  their  grantors,  shall  have  held  and  worked 
their  said  claims  for  a  period  equal  to  the  time  prescribed  by  the  Statute  of 
Limitations  for  mining  claims  of  the  State  or  Territory  where  the  same  may  be 
situated,  evidence  of  such  possession  and  working  of  the  claims  for  such  period 
sball  be  sufficient  to  establish  a  right  to  a  patent  thereto,  under  this  act,  in  the 
absence  of  any  adverse  claim:  Provided,  hoioever,  that  nothing  in  this  act  shall 
be  deemed  to  impair  any  lien  which  may  have  attached,  in  any  way  whatever 
to  any  mining  claim  or  property  thereto,  attached  prior  to  the  issuance  of  a 
patent." 

Sec.  13  of  the  Act  of  1870  applied  as  well  to  lode  as  to  placer  claims,  and 
lessened  the  amount  of  proof  required  to  establish  a  right  to  a  patent.  Instrue- 
tions,  Aug.  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  253. 

1  Sec.  11,  Act  of  1872,  17  U.  S.  Stats.  91,  was  the  same  as  above,  with  the  addi- 
tion of  the  following  words  in  parenthesis  :  (Subject  to  the  provisions  of  this 
act  and  the  act  entitled,  "Act  of  1870,"  instead  of  "subject  to  the  provisions 
of  this  chapter.") 

2  Rev.  Stats.  2333.  See  Sec.  11,  Act  of  1872,  17  U.  S.  Stats.  94;  and  also,  Sec. 
2325,  Rev.  Stats. 


232  PLACER   CLAIMS.  §  1G9 

slight  modifications  in  the  notice,  etc.,  to  placer  claims,  regard 
being  had  to  the  different ,  nature  of  the  two  classes  of  claims, 
placer  claims  being  fixed,  however,  at  two  dollars  and  fifty- 
cents  per  acre,  or  fractional  part  of  an  acre.1 

Where  placer  claims  are  upon  surveyed  lands,  and  conform 
to  legal  subdivisions,  no  further  survey  or  plat  is  required,  and 
all  placer  mining  claims  located  after  May  10th,  1872,  must 
conform  as  nearly  as  practicable  with  the  United  States  system 
of  public  land  surveys,  and  the  rectangular  subdivisions  of  such 
surveys,  and  no  such  location  shall  include  more  than  twenty 
acres  for  each  individual  claimant ;  but  where  placer  claims 
cannot  be  conformed  to  legal  subdivisions,  survey  and  plat  must 
be  made  as  on  unsurveyed  lands.  But  where  such  claims  are 
located  previous  to  the  public  surveys,  and  do  not  conform  to 
legal  subdivisions,  survey,  plat,  and  entry  thereof  may  be  made 
according  to  the  boundaries  fixed  by  local  laws.2 

By  Section  2880  of  the  Revised  Statutes,  authority  is  given 
for  the  subdivision  of  forty-acre  legal  subdivisions  into  ten- 
acre  lots,  which  is  intended  for  the  greater  convenience  of 
miners  in  seoTeo-atino;  their  claims,  both  from  one  another  and 
from  intervening  agricultural  land. 

The  proper  construction  is  held  to  be,  that  these  ten-acre 
lots  in  mining  districts  should  be  considered  and  dealt  with,  to 
all  intents  and  purposes,  as  legal  subdivisions  ;  and  that  an 
applicant  having  a  legal  claim  which  conforms  to  one  or  more 
of  these  ten-acre  lots,  either  adjoining  or  cornering,  may  make 
entry  thereof,  after  the  usual  proceedings,  without  further  sur- 
vey or  plat.3 

§  169.  Description  in  the  notice. — In  cases  of  this  kind, 
however,  the  notice  given  of  the  application  must  be  very 
specific  :iiid  accurate  in  description,  and  as  the  forty-acre  tracts 
may  be  subdivided  into  ten-acre  lots,  either  in  the  form  of 
squares  of  ten  by  ten  chains,  or  of  parallelograms  five  by  twenty 
chains,  bo  long  as  the  lines  are  parallel  and  at  right  angles  with 

1  instructions,  June  10th,  1H72,  Subdivision  64.    February  1st,  1877,  Subdivis- 
■  •  64. 
i:<  \ ,  Stal ).  2S31.    lusiriK  tions  February  1st,  1877,  Subdivision  63. 
B  Instructions,  June  10th,    1872,   Subdivisions  CO,  57,  58.     February  1st,   1877, 
Subdivisions  66,  56, 


§  170  PLACER    CLAIMS.  233 

tlie  lines  of  the  public  surveys,  it  is  necessary  that  the  notice 
and  application  state  specifically  what'  ten-acre  lots  are  sought 
to  be  patented,  in  addition  to  the  other  data  required  in  the  notice. 
Where  the  ten-acre  subdivision  is  in  the  form  of  a  square,  it 
may  be  described,  for  instance,  as  the  "  S.  E.  \  of  the  S.  W.  k 
of  N.  W.  i,"  or  if  in  the  form  of  a  parallelogram  it  may  be 
described  as  the  "  W.  £  of  the  W.  £  of  the  S.  W.  I  of  the  N. 
W.  i,"  or  the  »  N.  i  of  the  S.  }  of  the  N.  E.  \  of  the  S.  E.  1  of 

Section ,  Township ,  Range ,"  as  the  case  may  be  ; 

but  in  addition  to  this  description  of  the  land,  the  notice'  must 
give  all  the  other  data  that  are  required  in  a  mineral  application, 
by  which  parties  may  be  put  on  inquiry  as  to  the  premises 
sought  to  be  patented.1  The  proof  submitted  with  applications 
for  claims  of  this  kind  must  show  clearly  the  character  and  ex- 
tent of  the  improvements  upon  the  premises. 

The  proceedings  necessary  for  the  adjustment  of  rights,  where 
a  known  vein  or  lode  is  embraced  by  a  placer  claim,  are  clearly 
defined  in  the  eleventh  section  of  the  Act  of  1872,  Rev.  Stats. 
2333. 

When  an  adverse  claim  is  filed  to  a  placer  application,  the 
proceedings  are  the  same  as  in  the  case  of  vein  or  lode  claims 
already  described.2 

§  170.  Entry  and  survey  of  placer  claims  under  the 
Acts  of  1866-70. — An  applicant  for  a  patent  for  a  placer  claim 
was  required  by  the  Act  of  1866  to  come  within  the  same  con- 
ditions applicable  to  claimants  of  veins  or  lodes,  and  the  proceed- 
ings prior  to  the  survey  were  the  same  in  both  instances.3 

After  the  expiration  of  the  ninety  days'  notice  given  in  such 
cases,  proof  of  which  was  to  be  made  to  the  satisfaction  of  the 
register,  the  placer  mining  claimant,  where  the  subdivision  of  a 
forty-acre  tract  was  necessary,  might  engage,  under  private  con- 
tract, either  a  United  States  deputy  or  a  county  or  local  sur- 
veyor to  perform  the  work  at  the  expense  of  the  claimant ;  such 
forty-acre  tract  to  be  invariably  laid  off  into  four  lots  of  equal 
area  to  suit  the  circumstances  of  the  case,  the  survey  to  be  ex- 

1  Instructions,  June  10th,  1872,  Subdivisions  59,  CO,  Gl,  G2  ;  Ibid.,  February  1st, 
1877,  Subdivisions  53-60. 

2  See  Ante,  p.  180. 

s  Instructions,  August  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  253,  265. 


234 


PLACER    CLAIMS. 


§170 


ecutecl  and  sworn  to,  and  plat  and  field-notes  filed.  Upon 
which  the  latter  were  transmitted  by  the  register  and  receiver 
to  the  Surveyor-General  for  verification  and  approval,  who, 
if  he  found  the  work  to  have  been  correctly  executed,  would 
give  such  ten-acre  lot,  where  the  same  constituted  the  en- 
tire claim,  its  appropriate  numerical  designation  in  the  order 
of  surveyed  mineral  claims  in  the  township  ;  and  where  several 
of  these  ten-acre  lots  were  contiguous,  and  constituted  one 
claim,  they  would  not  receive  separate  numbers  for  each  lot, 
but  the  whole  would  receive  one  number  in  the  order  of  min- 
eral claims  in  the  township. 

The  Surveyor-General  then  marked  such  claims  upon  the 
original  township  plat  on  file  in  his  office,  and  sent  an  authenti- 
cated copy  of  the  plat  and  field-notes  of  the  survey  to  the  regis- 
ter of  the  proper  local  land  office,  and  to  the  General  Land 
Office,  as  in  the  case  of  vein  or  lode  surveys. 

Thereafter,  if  no  adverse  claim  Avas  presented,  an  entry  was 
allowed  of  such  claims  at  the  rate  of  two  dollars  and  fifty  cents 
for  each  acre,  or  fractional  part  of  an  acre,  embraced  in  the 
survey  ;  the  local  land  officers  preserving  an  unbroken,  con- 
secutive series  of  numbers  for  all  mineral  entries,  both  lode  and 
placer,  and  then  reporting  to  the  General  Land  Office  in  the 
usual  manner. 

These  directions  applied  only  to  those  placer  claims  which 
were  upon  surveyed  land,  and  could  not  be  entered  into  forty- 
acre  legal  subdivisions  without  interference  with  the  rights  of 
other  bona  fide  mineral  or  agricultural  claimants  in  the  same 
tract ;  and  in  all  cases,  testimony  was  required  as  to  whether  or 
not  such  other  claimants  to  such  forty-acre  tract  existed,  and 
where  such  were  found,  the  applicant  was  recpaired,  at  his  own 
expense,  to  cause  the  survey  into  ten-acre  lots,  so  as  to  segregate 
his  claim  from  the  remainder  ;  and  where  there  were  no  such 
oilier  claimants  to  any  portion  of  the  forty-acre  tract,  the  entry 
was  required  to  conform  in  its  exterior  limits  to  such  forty-acre 
1 « •  j : 1 1  -ultdi vision. 

Where  there  were  several  placer  claims  within  the  same  sub- 
division,  their  occupants  had  tin;  option  of  making  joint  entry 
of  th  ■  land,  or  of  having  such  smaller  subdivisions  made  at  their 
own   cost,  and    receiving  separate  patents.     Where   the  placer 


§  171  PLACER   CLAIMS.  235 

claim  sought  to  be  patented  was  upon  unsurveyed  land,  a  sur- 
vey and  plat  thereof  had  to  be  made  by  a  United  States  min- 
eral deputy  surveyor,  under  conditions  similar  to  those  appli- 
cable to  surveys  of  veins  or  lodes.1 

§  171.  Survey  of  placer  claims  under  Acts  of  1866-70. 
— In  making  the  survey  where  placer  mines  existed  upon  such 
forty-acre  tracts,  the  subdivision  was  required  to  be  invariably 
into  ten-acre  lots,  in  the  form  either  of  squares,  one  side  of 
which  should  be  ten  chains,  or  in  the  form  of  parallelograms, 
one  side  of  which  should  be  five  and  the  other  twenty  chains, 
as  might  the  better  embrace  such  placer  claim.  But  the  lines 
of  these  surveys  were  not  allowed  to  run  diagonally  to  those  of 
the  regular  surveys,  but  were  required  to  be  parallel  and  at 
right  angles  therewith,  so  as  to  avoid  confusion  in  the  descrip- 
tion of  the  remainder  of  the  land. 

In  case  there  existed  a  vein  or  lode-claim  upon  such  forty- 
acre  tract,  the  subdivision  into  ten-acre  lots  was  not  imperative, 
and  the  survey  in  such  case  might  be  executed  in  such  manner 
as  would  segregate  the  portion  of  land  actually  containing  the 
mine,  and  used  as  surface  ground  for  the  convenient  working 
thereof,  from  the  remainder  of  the  tract,  which  remainder  would 
be  patented  to  the  agriculturist  to  whom  the  same  might  have 
been  awarded,  subject,  however,  to  the  condition  that  the  land 
might  be  entered  upon  by  the  proprietor  of  any  vein  or  lode 
for  which  a  patent  had  been  issued  by  the  United  States,  for 
the  purpose  of  extracting  and  removing  the  ore  where  found  to 
penetrate  or  intersect  the  land  so  patented  as  agricultural,  as 
provided  for  in  the  act. 

Such  survey  when  executed  was  to  be  properly  sworn  to  by 
the  surveyor,  either  before  a  notary  public,  officer  of  a  Court  of 
Record,  or  before  the  register  or  receiver,  the  deponent's  char- 
acter and  credibility  to  be  properly  certified  to  by  the  officer 
administering  the  oath. 

Upon  the  filing  of  the  plat  and  field-notes  of  such  survey 
duly  sworn  to,  the  same  was  transmitted  to  the  Surveyor-Gen- 
eral for  his  verification  and  approval ;  who,  if  he  found  the 
work   correctly    performed,    properly   marked    out    the    same 

1  Instructions,  May  Gth,  1S71,  Copp's  U.  S.  Mining  Decisions,  2G1. 


236  PLACER    CLAIMS.  §  172 

upon  the  original  township  plat  in  his  office,  and  furnished  au- 
thenticated copies  of  such  plat  and  description  both  to  the 
proper  local  land  office  and  to  the  General  Land  Office,  to  be 
affixed  to  the  duplicate  and  triplicate  township  plats  respectively. 

In  cases  where  a  portion  of  a  forty-acre  tract  was  awarded  to 
an  agricultural  claimant,  and  he  caused  the'  segregation  thereof 
from  the  mineral  portion,  such  agricultural  portion  was  not  given 
a  numerical  designation,  as  in  the  case  of  surveyed  mineral 
claims,  but  was  simply  described  as  the  "  Fractional  quar- 
ter of  the quarter   of    section ,  in   township ,  of 

rancre  — ,  —  meridian,  containing acres,  the  same  being  ex- 
clusive of  the  land  adjudged  to  be  mineral  in  said  forty-acre 
tract."  The  surveyor  was  to  correctly  compute  the  area  of  such 
agricultural  portion,  which  computation  was  to  be  verified  by 
the  Surveyor-General. 

After  the  authenticated  plat  and  field-notes  of  the  survey 
were  received  from  the  Surveyor-General,  the  General  Land 
Office  issued  the  necessary  order  for  the  entry  of  the  land,  and 
in  issuing  the  receiver's  receipt  and  register's  patent  certificate, 
the  latter  officers  were  invariably  to  be  governed  by  the  descrip- 
tion of  the  land  given  in  the  order  from  the  General  Land  Of- 
fice.1 

§  172.  Survey  and  entry  under  Act  of  1870. — Under  the 
twelfth  section  of  the  Act  of  1870  the  Surveyors-General  were 
authorized  to  have  such  subdivisions  into  ten-acre  tracts  made 
by  their  deputies,  when  applied  for  by  claimants,  numbering 
each  ten-acre  tract  with  consecutive  numbers  of  claims  in  the 
township,  as  in  the  case  of  other  mineral  surveys  ;  and  if  the 
service  was  performed  by  county  and  local  surveyors,  as  author- 
ized by  the  sixteenth  section,  it  was  the  duty  of  the  Surveyor- 
General  to  verify  the  surveys  so  executed,  and  if  found  cor- 
rectly  done,  to  adopt  the  same  and  certify  the  fact,  appending 
his  approval,  as  in  cases  of  surveys  made  under  his  own  direc- 
tion. The  expense  of  such  subdividing  was  required  to  be  de- 
frayed by  the  mining  claimants.2 

I,,  tractions  May  6th,  1871,  Copp's  U.  S.  Mining  Decisions,  2G1. 
I  d  I  rucl  i"i)s  August  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  253. 


§  173  PLACER    CLAIMS.  237 

§  173.  Quantity  of  placer  ground  subject  to  location. — 

Sections  2330  and  2331  of  the  Revised  Statutes,  (sec  Ante, 
Sees.  164,  165)  arc  construed  to  mean  that,  after  the  ninth  day 
of  July,  1870,  no  location  of  a  placer  claim  can  be  made  to 
exceed  1G0  acres,  whatever  may  be  the  number  of  locators 
associated  together,' or  whatever  the  local  regulations  of  the 
district  may  allow ;  and  that  from  and  after  May  10th,  1872, 
no  location  made  by  an  individual  can  exceed  twenty  acres,  and 
no  location  made  by  an  association  of  individuals  can  exceed  160 
acres,  which  location  of  160  acres  cannot  be  made  by  a  less 
number  than  eight  bona  fide  locators  ;  but  that  whether  as  much 
as  twenty  acres  can  be  located  by  an  individual,  or  160  acres  by 
an  association,  depends  entirely  upon  the  mining  regulations  in 
force  in  the  districts  at  the  date  of  the  location  ;  it  being  held 
that  such  mining  regulations  arc  in  no  way  enlarged  by  the 
statutes,  but  remain  intact  and  in  full  force  with  regard  to  the 
size  of  locations,  in  so  far  as  they  do  not  permit  locations  in  excess 
of  the  limits  fixed  by  Congress ;  but  that  where  such  regulations 
permit  locations  in  excess  of  the  maximums  fixed  by  Congress, 
they  are  restricted  accordingly.  The  regulations  as  to  the 
manner  of  marking  locations  on  the  ground,  and  placing  the  same 
on  record,  must  be  observed  in  the  case  of  placer  locations,  so 
far  as  the  same  are  applicable ;  the  law  requiring,  however, 
that  where  placer  claims  ar$  upon  surveyed  public  lands,  the 
locations  must  hereafter  be  made  to  conform  to  leo-al  subdivi- 
sions  thereof,  as  ncai*  as  practicable.1 

Placer  claims  before  the  Act  of  1870. — It  was  held  that  in 
mining  districts  over  which  the  lines  of  the  public  surveys 
had  not  been  extended,  a  placer  claim  held  and  occupied  ac- 
cording to  the  district  regulations,  upon  which  not  less  than 
$1,000  had  been  expended,  might,  in  the  absence  of  an  adverse 
claimant,  and  after  the  usual  proceedings,  be  surveyed,  entered, 
and  patented,  whatever  might  be  its  shape  or  area,  provided  that 
such  claim  was  located  at  a  date  prior  to  the  passage  of  the  Act 
of  July  9th,  1870,  which  interdicted,  after  that  date,  the  location 
of  a  claim  by  any  person  or  association  of  persons,  in  extent 

1  Instructions,  June  10th,  1872,  Sudivisions  Go,  G6;  Ibid.  February  1st,   1S77, 
Subdivisions  Gl-70. 


238 


PLACER    CLAIMS. 


§173 


exceeding  160  acres,  whatever  the  mining  regulations  might 
prescribe. 

But,  upon  lands  which  had  been  surveyed,  no  lot  or  claim 
smaller  than  ten  acres  could  be  patented  to  any  person  or  associa- 
tion of  persons,  under  said  Act ;  the  subdivision  of  forty-acre 
tracts  into  ten-acre  legal  subdivisions  to  be  effected  in  the  manner 
prescribed  by  the  law  and  the  instructions.1 

The  size  of  placer  claims  located  prior  to  the  Act  of  1870  was 
regulated  and  controlled  by  the  local  law.  Subsequent  to  July 
9th,  1870,  and  prior  to  May  10th,  1872,  no  location  of  a  placer 
claim  could  exceed  160  acres.  From  and  after  the  passage  of 
the  Act  of  May  10th,  1872,  no  individual  location  can  exceed 
twenty  acres,  and  no  location  made  by  an  association  can  exceed 
160  acres.  There  is  nothing  in  the  mining  acts  of  Congress 
forbidding  one  person,  or  an  association  of  persons,  purchasing 
as  many  separate  and  distinct  locations  as  he  or  they  may  desire, 
and  embracing  in  one  application  for  patent  the  entire  claim  to 
which  they  have  the  possession  and  the  right  of  possession,  by 
virtue  of  compliance  with  the  local  laws  and  Congressional 
enactments.  The  law  does  not  require  an  expenditure  of  $500 
upon  each  location  of  a  placer  claim  embraced  in  an  application 
for  patent,  where  the  locations  are  contiguous  and  constitute 
one  claim.  Where  an  application  embraces  two  or  more  distinct 
tracts  of  placer  mining  ground,  the  required  amount — viz : 
8500 — should  be  expended  upon  each  tract,  and  a  copy  of  the 
diagram  and  notice  posted  upon  each  tract,  to  entitle  the  claim- 
ant to  make  entry  thereof.2 

Placer  claims  on  surveyed  lands  under  Acts  of  1866  and 
1870. — In  regard  to  placer  claims  on  surveyed  lands,  where  the 
claimant  applied  to  enter  160  acres  in  legal  subdivisions,  no 
survey  and  plat  of  the  claim  were  required ;  the  entry  being 
allowed  to  be  completed  at  the  local  land  office  as  soon  as 
satisfactory  proof  had  been  made  after  the  expiration  of  ninety 
days'  notice  and  publication,  provided  that  no  adverse  claimant 
had,  in    the    meantime,    appeared.     Where    the    claimant  of  a 


1  Deei  i..ii  *',,,,,,  mi     inner,   Mureli  1  si,  1871,  Copp's  U.  S.  Mining  Decisions,  40. 

2  The  laws  do  not  limit  the  number  of  locations  one  person  may  make  in  a 
mining  district.    <l  Copp's    Land-owner,   94;  Decision  of  Commissioner,  Nov. 

i  174 .  i  Copp  •  Land-owner,  134;  Seo  Decision  of  Commissioner,  July  10th, 
18?:;,  Copp's  D".  8.  Mining  Decisions,  2110 


§  174  PLACER    CLAIMS.  239 

placer  mine  desired  the  subdivision  of  :i  quarter  section,  the 
service  might  be  performed  by  county  and  local  surveyors,  at 
the  expense  of  the  claimant,  as  required  by  law.1 

§  174.  Proofs  necessary  to  establish  possessory  right  to 
placer  claim. — Section  2332  of  the  Revised  Statutes,  by  its 
provisions,  greatly  lessened  the  burden  of  proof,  more  espe- 
cially in  the  case  of  old  claims  located  for  many  years,  the 
records  of  which,  in  many  cases,  have  been  destroyed  by  fire, 
or  lost  in  other  ways  during  the  lapse  of  time,  but  concerning 
the  possessory  right  of  which  all  controversy  or  litigation  has 
long  been  settled.  The  applicant  is  not  required  to  produce 
evidence  of  location,  copies  of  conveyances,  or  abstracts  of  title, 
as  in  other  cases,  but  is  required  to  furnish  a  duly  certified  copy 
of  the  Statute  of  Limitations  of  mining  claims  for  the  State  or 
Territory,  together  with  his  sworn  statement  giving*  a  clear  and 
succinct  narrative  of  the  facts  as  to  the  origin  of  his  title,  and 
likewise  as  to  the  continuation  of  his  possession  of  the  mining 
ground  covered  by  his  application,  the  area  thereof,  the  nature 
and  extent  of  the  mining  that  has  been  done  thereon  ;  whether 
there  has  been  any  opposition  to  his  possession  or  litigation 
with  regard  to  his  claim,  and  if  so,  when  the  same  ceased ; 
whether  such  cessation  was  caused  by  compromise  or  by  judicial 
decree,  and  any  additional  facts  within  the  claimant's  knowledge 
having  a  direct  bearing  upon  his  possession  and  bona  fides 
which    he    may    desire    to    submit    in    support    of    his    claim.2 

There  should  likewise  be  filed  a  certificate,  under  seal  of  the 
Court  having  jurisdiction  of  mining  cases  within  the  judicial 
district  embracing  the  claim,  that  no  suit  or  action  of  any  char- 
acter whatever  involving  the  right  of  possession  to  any  portion 
of  the  claim  applied  for  is  pending,  and  that  there  has  been  no 
litigation  before  said  Court  affecting  the  title  to  said  claim  or  any 
part  thereof,  for  a  period  equal  to  the  time  fixed  by  the  Statute 
of  Limitations  for  mining  claims  in  the  State  or  Territory,  other 
than  that  which  has  been  finally  decided  in  favor  of  the  claim- 
ants.    The  claimant  should  support  his  narrative  of  facts  rela- 

1  Instructions,  August  8th,  1870,  Copp's  U.  S.  Mining  Decisions,  259. 

2  Instructions,  June  10th,  1872,  Subdivisions  08,  09;  Ibid,  February  1st,  1877, 
Subdivisions  01-70. 


240  PLACER    CLAIMS.  §§  175-6 

tive  to  his  possession,  occupancy,  and  improvements,  by  corrob- 
orative testimony  of  any  disinterested  person  or  persons  of  cred- 
ibility, who  may  be  cognizant  of  the  facts  in  the  case,  and  are 
capable  of  testifying  understandingly  in  the  premises.  It  is  to 
the  advantage  of  claimants  to  make  their  proofs  as  full  and 
complete  as  practicable.1 

§  175.  Placer  mining  claims  located  after  May  10th, 
1872,  must  conform,  as  nearly  as  practicable,  with  the  public 
surveys.  In  other  words,  the  location  of  a  placer  mine  upon 
surveyed  land,  made  after  May  10th,  1872,  should  embrace 
legal  subdivisions  of  the  public  lands,  where  this  can  be 
done  without  interfering  with  the  rights  of  other  bona  fide  min- 
eral, agricultural,  or  other  claimants  in  the  same  tract.  Where 
placer  mines  are  situated  upon  unsurveyed  land,  or  where,  by 
reason  of  some  other  bona  fide  claimant,  a  legal  subdivision  of 
surveyed  land  cannot  be  embraced  in  an  application  for  patent, 
survey,  plat,  and  entry  must  be  made  of  the  premises  for  which 
a  patent  is  sought,  in  accordance  with  the  boundaries  fixed  by 
local  laws.2 

§  176.   Conflicting   claims — Placer   and  lode  claims. — 

The  premises  described  in  an  application  for  a  quartz  lode,  em- 
braced a  portion  of  the  premises  described  in  an  application  for 
certain  placer  mining  ground.  No  mention  was  made  by  the 
applicant  for  the  placer  ground  that  any  vein  or  lode  claim  ex- 
isted within  the  exterior  boundaries  of  the  premises  described 
in  their  application  for  patent,  and  hence,  in  the  language  of 
the  law  it  was  a  "conclusive  declaration  that  the  claimant  of 
the  placer  claim  has  no  right  of  possession  of  the  vein  or  lode 
claim." 

The  applicant  for  the  lode  claim  was  allowed  to  proceed  with 
his  application  for  patent,  and  make  entry  of  the  premises  de- 
scribed  in  his  application,  upon  full  compliance  with  the  law 
and  instructions. 

1  In  itructions,  June  10th,  L872,  Subdivisions 70, 71,72;  Ibid,  February  1st,  1877, 
Subdivi  H  in    61  70. 

- 1  ii  ii  ■  I  lommissioner,  May  L9th,  L873,  Copp's  U.  S.  Mining  Decisions, 

200;   [nstructions   June  lOth,  L872;  Ibid,  275.  February  1st,  1877,  Subdivision  53. 


§  177  PLACER    CLAIMS.  241 

Applicants  for  placer  mining  claims  are  required  to  furnish 
proof  that  the  premises  described  in  their  said  applications  do 
not  contain  any  known  veins  or  lodes  of  quartz,  or  other  rock 
in  place,  bearing  gold,  silver,  cinnabar,  lead,  tin,  or  copper.1 

§  177.  Miscellaneous  provisions. —  Cinnabar  and  copper 
deposits. — As  these  deposits  are  found  "  in  rock  in  place," 
rather  than  in  the  form  of  placers,  it  is  held  by  the  Land  Office 
that  parties  desiring  to  obtain  patents  for  lands,  valuable  on 
account  of  the  deposits  of  cinnabar  or  copper,  must  enter  the 
same  as  lode-claims.2 

Publication. — One  notice  may  include  a  description  of  all 
such  tracts,  giving  an  accurate  description  of  each  parcel  sepa- 
rately. This  rule  is,  however,  confined  to  placer  claims  in  the 
same  neighborhood,  and  not  to  claims  situate  at  wide  distances 
from  each  other  in  different  land  or  mining  districts.3 

Liens  are  fully  protected  by  the  act,  and  the  parties,  after  a 
patent,  are  in  even  a  better  condition  to  enforce  their  liens  than 
if  the  question  of  titles  was  undetermined.4 

Surveyed  lands. — Placers  must  be  regarded  as  being  on 
unsurveyed  land,  until  the  township  plat,  approved  by  the 
Surveyor-General,  is  filed  in  the  local  office.5 

Placer  claims  embracing  five-acre  lots  must  be  surveyed  when 
application  is  made  for  a  patent,  as  the  smallest  legal  subdivis- 
ion of  the  public  lands  is  a  ten-acre  tract.6 

Certificates  of  improvements  in  case  placer  claims  embrace 
legal  subdivisions. — Where  a  placer  claim  is  situate  upon  sur- 
veyed land,  and  conforms  to  legal  subdivisions  thereof,  no  survey 
or  plat  is  required  of  the  claim,  and  proof  of  improvements  may 
consist  of  affidavits  of  parties  who  are  familiar  with  the  claim, 
and  who  can  testify  undcrstandingly  in  regard  to  the  character 
and  amount  of  improvements.7 

1  In  re  Maryland  Quartz  Mine,  Decision  of  Commissioner,  October  17th,  1873, 
Copp's  U.  S.  Mining  Decisions,  226. 

2  Decision  of  Commissioner,  Aug.  2Gth,  1871,  Copp's  U.  S.  Mining  Decisions,  GO. 

3  In  re  Franklin  Lode  of  Colorado,  Decision  Commissioner,  June  19th,  1871, 
Copp's  U.  S.  Mining  Decisions,  45. 

4  In  re  Powell  Claim,  Decision  Commissioner,  March  22d,  1871,  Copp's  U.  S. 
Mining  Decisions,  41. 

5  Decision  of  Commissioner,  Aug.  27th,  1873,  Copp's  U.  S.  Mining  Decisions,  222. 

6  Ibid.  Oct.  23d,  1873,  Ibid.  229.  1 1bid.  Nov.  20th,  1873,  Ibid.  235. 

W.  C— 16. 


242  PUBLIC    SURVEYS.  §  178 


CHAPTER  XI. 

PUBLIC  SURVEYS  OVER  MINERAL  LANDS- SURVEYS  OF  MINING 
CLAIMS— DUTIES  OF  SURVEYOR-GENERAL— APPOINTMENT  OF 
DEPUTIES. 

§  178.  Appointment  of  surveyors  of  mining  claims  by  Surveyor-General. 

§  179.  Public  surveys  extended  over  mineral  lands. 

§  180.  Description  of  vein  claims  on  surveyed  and  unsurveyed  lands. 

§   181.  Appointment  of  deputies. 

§  182.  Charges  for  surveys  and  publications. 

§   183.  Special  instructions  to  deputies. 

§   184.  Authority  of  deputies  outside  the  district. 

§  178.  Appointment  of  surveyors  of  mining  claims  by 
Surveyor-G-eneral. — "The  Surveyor-General  of  the  United 
States  may  appoint  in  each  land  district  containing  mineral 
lands,  as  many  competent  surveyors  as  shall  apply  for  appoint- 
ment to  survey  mining  claims.  The  expenses  of  the  survey  of 
vein  or  lode  claims,  and  the  survey  and  subdivision  of  placer 
claims  into  smaller  quantities  than  160  acres,  together  with  the 
cost  of  publication  of  notices,  shall  be  paid  by  the  applicants, 
and  they  shall  be  at  liberty  to  obtain  the  same  at  the  most  rea- 
sonable rates,  and  they  shall  also  be  at  liberty  to  employ  any 
United  States  deputy  surveyor  to  make  the  survey.  The  Com- 
missioner of  the  General  Land  Office  shall  also  have  power  to 
establish  the  maximum  charges  for  surveys  and  publication  of 
notices  Tinder  this  chapter ;  and  in  case  of  excessive  charges  for 
publication,  lie  may  designate  any  newspaper  published  in  a 
land  district  where  mines  are  situated,  for  the  publication  of 
mining  notices  in  such  district,  and  fix  the  rates  to  be  charged 
by  such  paper  ;  and  to  the  end  that  the  Commissioner  may  be 
fully  informed  <m  the  subject,  each  applicant  shall  file  with  the 
register  a  sworn  statement  of  all  charges  and  fees  paid  by  such 
applicant  for  publication  and  surveys,  together  with  all  fees  and 
money  paid  the  register  and  the  receiver  of  the  Land  Office, 


§§  179-81  PUBLIC    SURVEYS.  243 

which  statement  shall  be  transmitted,  with  the  other  papers  in 
the  case,  to  the  Commissioner  of  the  General  Land  Office."  l 

§  179.  Public  surveys  extended  over  mineral  lands. — 

Sec.  2406  of  the  Revised  Statutes  reads :  "  There  shall  be  no 
further  geological  survey  by  the  Government,  unless  hereafter 
authorized  by  law.  The  public  surveys  shall  extend  over  n11 
mineral  lands ;  and  all  subdividing  of  surveyed  lands  into  lots 
less  than  160  acres  may  be  done  by  county  and  local  surveyors 
at  the  expense  of  claimants ;  but  nothing  in  this  section  con- 
tained shall  require  the  survey  of  waste  or  useless  lands."  2 

§  180.  Description  of  vein  claims  on  surveyed  and 
unsurveyed  lands. — Section  2327  of  the  Eevised  Statutes  is 
as  follows :  "  The  description  of  vein  or  lode  claims,  upon  sur- 
veyed lands,  shall  designate  the  location  of  the  claim  with  ref- 
erence to  the  lines  of  the  public  surveys,  but  need  not  conform 
therewith ;  but  where  a  patent  shall  be  issued  for  claims  upon 
unsurveyed  lands,  the  Surveyor-General,  in  extending  the  sur- 
veys, shall  adjust  the  same  to  the  boundaries  of  such  patented 
claim,  according  to  the  plat  or  description  thereof,  but  so  as  in 
no  case  to  interfere  with  or  change  the  location  of  any  such 
patented  claim."  3 

§  181.  Appointment   of  deputy  mineral  surveyors. — 

Under  Section  2334   of  the  Revised  Statutes,  the   Surveyors- 

1  Rev.  Stats.  2334. 

See  Sec.  12,  Act  1872,  17  U.  S.  Stats.  95. 

Fees  of  Registers  and  Receivers,  see  Rev.  Stats.  2238. 

See,  also,  Rev.  Stats.  Sees.  2330,  2331,  2403. 

Sec.  12  of  the  Act  of  1872,  17  U.  S.  Stats.  95,  was  the  same  as  Rev.  Stats. 
2334,  with  the  following  words  added:  "The  fees  of  the  register  and  receiver 
shall  be  five  dollars  each  for  filing  and  acting  upon  each  application  for 
patent  or  adverse  claim  filed,  and  they  shall  be  allowed  the  amount  fixed  by 
law  for  reducing  testimony  to  writing,  when  done  in  the  Land  Office,  such  fees 
and  allowances  to  be  paid  by  the  respective  parties ;  and  no  other  fees  shall  bo 
charged  by  them  in  such  cases.  Aothing  in  this  act  shall  be  construed  to  enlarge 
or  affect  the  rights  of  either  party  in  regard  to  any  property  in  controversy  at 
the  time  of  the  passage  of  this  act,  or  of  the  Act  (of  I860);  nor  shall  this  act 
affect  any  right  acquired  under  said  act.  And  nothing  in  this  act  shall  be  con- 
strued to  repeal,  impair,  or  in  any  way  affect  the  provisions  of  (The  Sutro  Tun- 
nel Act)." 

2  Rev.  Stats.  240G;  Sec.  !),  Act  of  July  9th,  1870,  1G  U.  S.  Stats.  218.  See  Sec. 
2334  Rev.  Stats. 

»  Sec.  8,  Act  1872,  17  U.  S.  Stats.  94.    See  Sec.  2325,  Rev.  Stats. 


244  PUBLIC   SURVEYS.  §§  182-3 

General  of  the  several  districts  are  required  to  appoint  in 
each  land  district  as  many  competent  deputies  for  the  survey 
of  mining  claims  as  may  seek  such  appointment ;  it  being 
distinctly  understood  that  all  expenses  of  these  notices  and 
surveys  are  to  be  borne  by  the  mining  claimants,  and  not  by 
the  United  States;  the  system  of  making  deposits  for  mineral 
surveys,  as  required  by  previous  instructions,  being  revoked  as 
regards  field  work,  the  claimant  having  the  option  of  employing 
any  deputy  surveyor  within  such  district  to  do  his  work  in  the 
field.1 

With  regard  to  the  platting  of  the  claim,  and  other  office 
work  in  the  Surveyor-General's  office,  that  officer  will  make  an 
estimate  of  the  cost  thereof,  which  amount  the  claimant  will 
deposit  with  any  Assistant  United  States  Treasurer,  or  desig- 
nated depository,  in  favor  of  the  United  States  Treasurer,  to 
be  passed  to  the  credit  of  the  fund  created  by  "  individual  de- 
positors for  surveys  of  the  public  lands,"  and  file  with  the  Sur- 
veyor-General duplicate  certificates  of  such  deposit,  in  the  usual 
manner.  The  Surveyor-General  is  instructed  to  appoint  mineral 
deputy  surveyors  as  rapidly  as  possible,  so  that  one  or  more 
may  be  located  in  each  mining  district  for  the  greater  conve- 
nience of  miners.  The  usual  oaths  arc  required  of  these  depu- 
ties and  their  assistants  as  to  the  correctness  of  each  survey 
executed  by  them.2 

§  182.   Charges  for  surveys  and  publications. — The  law 

requires  that  each  applicant  shall  file  with  the  register  and  re- 
ceiver a  sworn  statement  of  all  charges  and  fees  paid  by  him 
for  publication  of  notice,  and  for  survey,  together  with  all  fees 
and  money  paid  the  register  and  receiver ;  which  sworn  statement 
is  required  to  be  transmitted  to  the  General  Land  Office  for  the 
information  of  the  Commissioner,  who  will  take  action  with  the 
view  of  correcting  any  abuses,  in  cases  of  excessive  or  exorbi- 
tant charges  by  any  surveyor  or  publisher.3 

§  183.  Special  instructions  of  Commissioner,  as  ex- 
officio  Surveyor-General. — The  Commissioner  of  the  General 

l Instructions  June  10th,  L872,  Subdivision  74;  February  1st,  1877,  82-92. 
-Ibid.  Subdivisions,  75 -77;  [bid. 

a  ibid.  Subdivisions,  78,  79j  [bid. 


§  183  PUBLIC    SURVEYS.  245 

Land  Office,  acting  as  cx-officio  Surveyor-General,  has  issued 
the  following  instructions  to  deputy  mineral  surveyors  in 
Arkansas,  and  they  will  apply  to  all  States  Avhcre  the  Com- 
missioner acts  as  such  ex-officio  Surveyor-General: 

"In  the  discharge  of  your  duties  as  deputy  mineral  surveyor 
you  will  be  governed  by  the  instructions  herein  contained,  and 
the  circular  instructions  from  this  Office.  No  official  survey 
will  be  made  except  on  application  of  the  claimant  or  his  duly 
authorized  aarent.  The  claimant  must  in  all  cases  make  satis- 
factory  arrangements  with  the  United  States  deputy  mineral 
surveyor,  for  the  payment  of  his  services  and  those  of  his  assist- 
ants in  making  the  survey,  as  the  United  States  will  not  be 
responsible  for  the  payment  of  the  same.  In  making  a  survey 
of  a  claim  you  will  begin  at  some  corner  of  the  public  surveys, 
and  run  a  line  either  by  course  and  distance,  or  by  triangulation, 
to  a  corner  of  the  claim,  designating  this  corner  as  '  Corner  No. 
1 ;  beginning.'  You  will  then  calculate  the  true  course  and 
distance  in  a  direct  line  from  the  corner  of  the  public  surveys  to 
said  '  Corner  No.  1.'  From  Corner  No.  1  you  will  proceed  with 
the  survey  of  the  claim,  giving  courses  and  distances  of  the 
exterior  boundaries,  establishing  a  corner  at  each  angle  of  the 
survey.  You  will  describe  the  corners  fully,  stating  whether  a 
post  or  stone,  the  size,  depth  in  the  ground,  and  how  marked. 
The  corner  monuments  will  be  marked  No.  1,  No.  2,  etc.,  as  you 
proceed  with  the  survey ;  also  with  the  number  of  the  survey. 
You  will  note  all  objects  crossed  by  your  lines  of  survey,  such 
as  prior  surveys,  lodes,  ditches,  ravines,  or  lines  of  the  public 
surveys.  You  will  note  all  shafts  and  their  depths,  all  adits, 
cuts,  drifts,  shaft-houses,  mills,  etc.,  and  represent  the  respect- 
ive locations  of  the  same  upon  the  plats.  After  describing 
fully  the  improvements  on  the  claim,  you  will  give  your  opinion 
in  regard  to  the  actual  value  thereof.  You  will  give  the  names 
of  adjoining  claimants,  if  any,  and  state  the  quarter-section, 
township,  and  range  in  which  the  claim  is  situated.  On  the 
plats  the  section  lines  will  be  represented  in  black  ink  ;  the  cpiarter- 
section  lines  in  red.  The  field-notes  will  be  made  upon  paper 
of  uniform  size.  The  plats  will  be  prepared  upon  paper  12x18 
inches  in  size.  In  each  case  four  plats  and  one  copy  of  the 
original  field-notes  will  be  transmitted  to  this  Office  for  approval. 


246  PUBLIC    SURVEYS.  §  184 

When  the  same  have  been  examined  and  approved,  the  original 
field-notes  will  be  retained  in  this  Office ;  one  copy  of  the  plat 
will  be  transmitted  to  the  register  of  the  proper  land  district,  to 
be  retained  on  his  files  for  future  reference,  and  two  plats  and 
one  copy  of  the  field  notes  will  be  returned  to  you  to  be  handed 
the  applicant,  to  be  disposed  of  as  follows,  viz :  1st.  One  copy 
of  the  plat  to  be  posted  on  the  claim  ;  and  2d.  One  plat  and  the 
copy  of  field-notes  to  be  filed  by  the  applicant  with  the  register 
and  receiver  with  his  application  for  patent.  Accompanying 
the  plat  and  field-notes  transmitted  by  you  to  this  Office  for  ap- 
proval, you  will  forward  the  affidavits  of  at  least  two  responsi- 
ble parties,  that  an  amount  of  not  less  than  five  hundred  dollars 
has  been  expended  upon  the  claim  in  actual  labor  and  improve- 
ments. Great  care  should  be  exercised  to  have  the  courses  and 
distances  expressed  in  the  field-notes  correspond  with  those 
represented  on  the  plats.  Your  attention  is  called  to  circular 
instructions  from  this  Office  dated  June  10th,  1872,  and  Novem- 
ber 20th,  1873."  i 

§  184.  Authority  of  deputies  outside  the  district. — A 

deputy  mineral  surveyor  is  not  authorized  to  make  surveys  of 
mineral  claims  outside  of  the  State  or  district  for  which  he  is 
appointed.2 

i  Instructions  of  Commissioner,  Feb.  19th,  1875;  2  Copp's  Land-owner,  34. 
2  Decision  of  Commissioner,  Aug.  Gtb,  1872;  Copp's  U.  S.  Mining  Decisions,  131. 


§  186  INTERSECTION    OF    VEINS.  2-17 


CHAPTER  XII. 

INTERSECTION  OF  VEINS* 

§  185.  Intersection  of  veins. 

§  186.  Conflicts  as  to  surface  ground. 

§  187.  Identity  of  lodes. 

§  188.  Interference  of  claims. 

§  ISO.  Abandonment  of  surface  ground. 

§  185.   Intersection  of  veins. — See.   2336  of  the  Revised 

Statutes  reads :  "  Where  two  or  more  veins  intersect  or  cross  each 
other,  priority  of  title  shall  govern,  and  such  prior  location  shall 
be  entitled  to  all  ore  or  mineral  contained  within  the  space  of 
intersection  ;  but  the  subsecpient  location  shall  have  the  right  of 
way  through  the  space  of  intersection  for  the  purposes  of  the 
convenient  working  of  the  mine.  And  where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the  vein  below 
the  point  of  union,  including  all  the  space  of  intersection."  1 

The  construction  which  has  been  given  to  this  part  of  the 
law  is  that  a  party  has  a  right  to  a  patent  for  the  number  of 
feet  along  his  lode  or  vein  to  which  he  has  the  local  title,  upon 
full  compliance  with  the  law  and  instructions ;  provided,  how- 
ever, that  where  another  lode  crosses,  the  ore  at  the  space  of 
intersection  of  the  two  lodes  belongs  to  the  party  who  owns  the 
prior  location  of  the  two,  whether  patented  first  or  second. 

The  law  clearly  refers  to  cross  lodes,  and  provides  that  the  ore 
at  the  crossing  of  the  two  lodes  shall  belong  to  the  first  valid 
location,  and  hence,  where  a  patent  isues  for  a  mining  claim 
which  crosses  one  already  patented,  the  surface  ground  in  con- 
flict is  excepted  from  the  second  patent,  but  the  subsequent 
patentee  has  the  right  under  his  patent  to  the  lode  for  the  dis- 
tance patented,  with  the  proviso  hereinbefore  referred  to,  viz: 
that  the  ore  at  the  space  of  intersection  of  the  cross  lodes  shall 
belong  to  the  prior  location.2 

*Rev.  Stats.  2336;  Sec.  14,  Act  of  1872;  17  U.  S.  Stats.  96. 

2  Decision  of  Acting  Commissioner,  Feb.  25th,  1876;  2  Copp's  Land-owner,  178. 


248  INTERSECTION  OF  VEINS.  §  186 

Until  two  lodes  have  been  developed  It  cannot  be  ascertained 
with  certainty  that  they  are  one  and  the  same.  If  the  same, 
the  law  provides  which  shall  have  the  better  right :  if  separate, 
both  parties  have  the  right  under  the  law  to  follow  their  vein  to 
any  depth,  although  it  may  enter  the  land  adjoining. 

Ordinarily,  a  few  words  of  explanation  will  convince  the 
holder  under  a  patent,  that  a  plea  or  adverse  claim  is  unneces- 
sary where  a  survey  for  another  lode  crosses  his  own  premises, 
as  the  ground  in  conflict  is  already  patented  to  him,  and  will  be 
excepted  from  the  patent  issued  under  the  subsequent  amplica- 
tion. Should  the  patentee  persist  in  filing  an  adverse  claim,  the 
register  will  receive  it,  and  give  him  the  usual  notice  in  writing 
that  the  same  is  rejected  on  the  grounds  above  recited,  when  he 
may  appeal  to  the  General  Land  Office  if  he  desires  to  do  so. 

But  where  it  appeared  that  the  premises  conveyed  by  the 
patent  were  incorrectly  described  therein ;  that  the  land  con- 
veyed lay  considerably  east  of  that  claimed,  and  it  became  a 
duty,  therefore,  to  protest  against  the  issuance  of  a  patent  on  a 
conflicting  survey  until  a  second  patent  was  issued  for  the  lode, 
correctly  describing  the  claim,  the  register  was  directed  to  re- 
ceive such  plea  or  protest  as  the  party  might  desire  to  file,  and 
transmit  the  same  to  the  General  Land  Office  with  the  other 
papers  in  the  case,  after  the  entry  had  been  perfected  as  usual.1 

§  186.  Conflicts  as  to  surface  ground. — Where  a  record 
showed  that  the  claimants  had  fully  complied  with  all  the  re- 
quirements of  the  law,  and  that  no  adverse  claim  was  filed  in 
time,  and  the  survey  showed  a  partial  conflict  as  to  surface 
ground  with  the  patented  claim  of  another  company,  whose  lode 
left  the  surface  ground  patented  to  it,  and  extended  under  the 
surface  ground  of  the  other  applicant,  it  was  held  that  the 
second  section  of  the  Act  of  July  26th,  1866,  under  which  the 
company  made  its  location,  authorized  the  patentee  to  follow  the 
vein  or  lode,  "  although  it  may  enter  the  land  adjoining,  which 
Land  adjoining  shall  be  sold  subject  to  this  condition."  This  pro- 
vision made  it  proper  to  recite  the  "condition"  in  the  patent 
lor  the  "land  adjoining,"  whether  it  was  absolutely  necessary  to 

1  In  re  Bearle  Lode,  Obtusion  of  Commissioner,  Oct.  8th,  1875;  2  Copp's  Land- 
owner, 1 15. 


§  187  INTERSECTION  OF  VEINS.  249 

make  such  recital  or  not.  It  may  be  that  the  law  would  suffi- 
ciently protect  the  patentee  without  any  such  recital,  but  it  can 
do  no  harm  to  insert  it,  and  the  Land  Office  may  properly  make 
the  insertion  whenever  it  is  shown,  by  its  own  records,  that  there 
has  been  a  previous  patent  for  a  mineral  lode  on  land  adjoining 
that  applied  for.  The  Commissioner  had  directed  that  the  ex- 
ception should  be  in  these  words:  "Excepting  from  this  con- 
veyance the  surface  ground  and  lode  conveyed  to  the  said  Inter- 
national Mining  and  Exchange  Company  by  said  patent,  dated 
September  3d,  a.  d.  1872." 

It  was  objected  to  this  form  of  expression,  that  it  found  that 
the  lode  referred  to  ran  under  the  premises  of  the  other,  and 
that  there  was  no  right  to  find  such  a  fact. 

The  Secretary  ruled,  on  appeal,  that  the  rights  of  all  parties 
would  be  protected  by  inserting  in  the  patent  the  following 
clause,  which  was  directed  to  be  done  :  "  Excepting  from  this 
conveyance  the  surface  ground  conveyed  to  the  said  Interna- 
tional Mining  and  Exchange  Company  by  its  patent,  dated 
September  3d,  1872,  and  also  excepting  from  this  conveyance 
so  much  of  the  Hercules  lode,  if  any  there  be,  as  was  legally 
conveyed  to  the  said  International  Mining  and  Exchange  Com- 
pany by  its  aforesaid  patent,"  1  and  the  decision  of  the  Commis- 
sioner was  modified  to  that  extent. 

§  187.  Identity  of  lodes. — The  bare  possibility  that  two 
lodes  which  are  separate  and  distinct  on  the  surface  may  sub- 
sequently converge  so  as  to  form,  at  some  indefinite  distance 
under  ground,  one  and  the  same  lode,  is  not  sufficient  basis  for 
an  adverse  claim,  nor  for  a  protest  against  the  issuance  of  a 
patent.  It  would  not  be  expedient  to  carry  any  such  vague  and 
undeterminable  question  as  this  into  the  Courts,  for  the  reason 
that  until  sufficient  exploration  and  development  have  been  made 
to  establish  the  fact  that  the  lodes  unite  and  are  identical,  the 
judgment,  in  view  of  the  developments  of  one  day,  might  be 
reversed  by  the  same  tribunal,  by  other  and  further  develop- 
ments, the  next.     Such  a  construction  of  the  law  would  susj>end 

1  In  re  Seven  Thirty  and  Hercules  Lodes,  Decision  of  Secretary  of  Interior, 
March,  4th,  1875,  modifying  Decision  of  Commissioner,  August  17th,  1874,  2 
Copp's  Land-owner,  18;  1  Ibid.  82. 


250  INTERSECTION    OF    VEINS.  §  188 

the  disposal  of  the  mineral  lands  until   the   attempted  adjust- 
ment of  hypothetical  controversies,  and  will  not  be  entertained. 

Besides,  under  the  law,  if  lodes  be  found  to  unite,  the  parties 
who  have  the  prior  location  and  patent  are  as  fully  invested 
with  title  to  the  lode  beyond  the  point  of  union,  including  all 
the  space  of  intersection,  as  if  the  other  claim  had  not  been 
patented.  Where,  therefore,  there  is  no  controversy  about  the 
possession  of  the  surface  of  the  claims,  no  sufficient  adverse 
claim  is  made  out. 

A  protest,  therefore,  in  the  following  language :  "  That  on 
the  4th  of  February,  1870,  a  patent  was  issued  by  the  United 
States  to  said  Chollar-Potosi  Mining  Company,  for  their  claim 
on  the  Comstock  Lode ;  that  they  are  still  the  owners  of  the 
property  described  in  said  patent ;  that  said  lodes  for  which  said 
Julia  Gold  and  Silver  Mining  Company  has  made  application 
for  patents  conflict  with  the  claim  of  said  Chollar-Potosi  Min- 
ing Company  ;  that  said  lodes  have  no  existence  as  separate  and 
distinct  lodes  from  said  Gomstock  Lode ;  but,  on  the  contrary, 
all  lodes  of  quartz  or  other  rock  in  place,  or  otherwise,  bearing 
gold  or  silver,  heretofore  found,  or  that  may  hereafter  be  found 
within  the  boundaries  described  in  said  application  of  said 
Julia  Gold  and  Silver  Mining  Company,  are  parts  and  parcels  of 
the  said  Comstock  Lode,  and  belong  and  appertain  thereto,  and 
there  is  no  lode  within  said  boundaries  separate  and  distinct 
from  said  Comstock  Lode,"  was  held  insufficient  to  stay  pro- 
ceedings.1 

§  188.  Interference  of  claims. — In  commenting  on  Section 
2336,  it  has  been  remarked  that  it  appears  to  be  plain,  but 
when  applied  to  the  facts  in  mining  cases,  and  when  compared 
with  a  section  giving  all  veins  within  his  lines  to  the  locator, 
and  especially  when  involved  with  different  degrees  of  title, 
(patented  against  possessory)  or  to  the  case  of  several  over- 
lapping patents,  it  may  be  found  ambiguous.  "  The  leading  idea 
of  the  act  is,  that  a  lode  is  a  straight  vein  whose  course  can  be 
readily  ascertained  and  indicated  by  a  straight  line   or  a  series 

1  Crisr;  of  the  Julia  Gold  and  Silver  Mining  Company's  Application,  Decision 
of  CoinMH  Loner,  May  27th,  1872;  Decision  of  Secretary,  Feb.  24th,  1873,  Copp'a 
TIS.  Mining  Decisions,  90,  101. 


§  188  INTERSECTION    OF    VEINS.  251 

of  straight  lines,  and  that  occasionally  such  a  vein  is  crossed 
by  another  in  a  similar  straight  line,  merely  requiring  the 
right  of  way  to  give  each  lode  its  proper  claim  ;  but  in  fact,  a 
lode  is  scarcely  ever  a  straight  line,  and  is  seldom  to  be  traced 
without  confusion  for  more  than  a  few  feet,  and  in  its  course 
other  veins  are  absorbed  into,  and  offshoots,  not  only  spurs,  but, 
perhaps,  better  developed  veins  than  itself,  run  from  it  in  all 
tortuous  directions  ;  and  in  its  extension  downward,  it  invariably 
dips  laterally,  and  often  shows  a  fork,  of  which  both  parts  ap- 
proach the  surface ;  and  it  will  divide,  and  may  or  may  not 
unite  at  another  point ;  and  it  will  abut  suddenly  upon  country 
rock,  and  so  be  thrown  far  to  one  side  ;  and  instead  of  showing- 
distinct  lines,  mineral  veins  are  as  irregular,  as  disproportioned 
in  length  and  width,  as  much  intermingled,  as  uncertain  to  seg- 
regate from  each  other,  as  are  the  veins  of  tliQ  hand,  or  the 
veins  on  a  block  of  marble. 

"  It  is  as  the  result  of  these  natural  facts  that  the  same  lode  is 
so  often  claimed  at  various  openings  by  as  many  sets  of  claim- 
ants, by  equally  honest  and  valid  or  invalid  locations. 

"  If  this  irregularity  were  once  admitted  in  any  case,  the  rem- 
edy might  be  obvious,  but  the  practical  difficulty  consists  in  com- 
pelling such  admission  ;  with  our  present  superficial  mining,  and 
our  present  knowledge  of  mineral  deposits,  the  question  whether 
two  claims  are  upon  the  same  or  separate  veins,  or  whether 
there  is  a  junction  or  crossing,  is  always  a  disputed  fact  upon 
which  parties  will  stand,  and  witnesses  will  disagree. 

"But  the  greatest  objection  to  the  Land  Office  practice,  under 
the  mining  acts,  is  to  the  granting  of  overlapping- patents.  A 
glance  at  the  plat  of  any  late  patent  in  a  well-developed  dis- 
trict, will  introduce  the  subject  to  the  reader  ;  three  or  four  sur- 
veys, partly  crossing,  partly  parallel,  and  intersecting  at  all  an- 
gles, are  frequently  seen,  so  that,  unless  the  plat  is  colored,  the 
eye  can  scarcely  distinguish  one  from  another  ;  only  the  rigid 
application  of  the  rule  of  preference  to  prior  patents  can  ever 
relieve  this  matter  from  difficulty  ;  for  while  the  words  of  a 
patent  always  except  the  surface  of  previous  surveys,  they  still 
proceed  upon  the  supposition  that  each  survey  indicates  a  sepa- 
rate vein. 

"  The  theory  that  each  survey  covers  a  distinct  vein,  or  that  a 


252  INTERSECTION   OF   VEINS.  §  189 

survey  covers  any  vein  at  all,  or  that  its  center  or  discovery- 
shaft  is  sunk  on  a  vein,  is  all  bare  assumption — these  points  de- 
pend upon  underground  developments,  and  not  on  diagrams  or 
surface  surveys."  1 

Where  a  protest  was  filed  against  an  application,  for  the  rea- 
son that  the  survey  of  the  claim  applied  for  conflicted  with 
and  embraced  a  portion  of  the  survey  of  another  lode,  a  clause 
was  ordered  to  be  inserted  in  the  patent,  excepting  from  the 
conveyance  the  surface  ground  of  the  latter  lode  which  had 
already  been  patented'.2 

§  189.  Abandonment  of  surface  ground. — The  applicants 
have  the  right,  of  course,  under  the  law,  to  follow  their  vein  or 
lode  to  the  intersection  of  any  other  lode.  The  ore  at  the  space 
of  intersection  of  the  two  lodes  belongs  to  the  prior  location.  If 
the  applicants  have  abandoned  from  their  application  all  the 
surface  ground  claimed  adversely,  and  identity  of  lodes  be  not 
alleged,  no  necessity  exists  for  a  further  suspension  of  proceed- 
ings upon  the  application  for  patent.3 

1  Morrison's  Mining  Eights  in  Colorado,  27, 28. 

2  In  ro  Equator  Lode,  Decision  of  Commissioner,  October  26th,  1875,  2  Copp's 
Land-owner,  114. 

3  Decision  Equator  Mine;  Sacramento  Mining  Co.  v.  Last  Chance  Mining  Co., 
Decision  of  Acting  Commissioner,  June  17th,  187G,  3  Copp's  Land-owner,  GO. 


§§  190-1  MILL    SITES.  253 


CHAPTER  XIII. 

MILL   SITES— PATENTS  FOR   NON-MINERAL  LANDS. 

§  190.  Patents  for  non-mineral  lands. 

§  191.  Location  of  mill  sites. 

5  192.  Procuring  patent. 

§  193.  A  mill  site  must  be  non-mineral  in  character. 

§  194.  Improvements. 

§  195.  Mill  sites  in  railroad  grants. 

§  190.  Patents  for  non-mineral  lands. — Section  2337  of 
the  Revised  Statutes  of  the  United  States  provides  that :  "  Where 
non-mineral  land  not  contiguous  to  the  vein  or  lode  is  used  or 
occupied  by  the  proprietor  of  such  vein  or  lode  for  mining  or 
milling  pui'poses,  such  non-adjacent  surface  ground  may  be  em- 
braced and  included  in  an  application  for  a  patent  for  such  vein 
or  lode,  and  the  same  may  be  patented  therewith,  subject  to  the 
same  preliminary  requirements  as  to  survey  and  notice  as  are 
applicable  to  veins  or  lodes  ;  but  no  location  hereafter  made  of 
such  non-adjacent  land  shall  exceed  five  acres,  and  payment  for 
the  same  must  be  made  at  the  same  rate  as  fixed  by  this  chapter 
for  the  superficies  of  the  lode.  The  owner  of  a  quartz-mill  or 
reduction  works  not  owning  a  mine  in  connection  therewith, 
may  also  receive  a  patent  for  his  mill  site,  as  provided  in  this 
section."1 

§  191.  Location  of  mill  sites. — Mill  sites  may  be  located 
under  the  provisions  of  the  mining  act,  and  if  located  should  be 
recorded. 

Locators  of  mining  claims,  their  heirs  and  assigns,  have  the 
exclusive  right  of  possession  of  the  surface  ground  included 
within  the  lines  of  their  locations,  upon  compliance  with  the 
laws  of  the  United  States,  and  with  the  State,  Territorial,  and 

i  Rev.  Stats.  2337,  Sec.  15,  Act  of  1872,  17  U.  S.  Stats.  96.  See  Rev.  Stats. 
2320,  2324. 


254  MILL    SITES.  §  192 

local  regulations  governing  their  possessory  titles,  where  no  ad- 
verse claim  thereto  existed  on  the  10th  of  May,  1872. 

The  parties  having  the  right  of  possession  to  the  surface  have 
also  the  right  of  j>ossession  to  the  timber  growing  thereon.1 

§  192.  Procuring  patent. — To  avail  themselves  of  the  pro- 
visions of  the  law  in  regard  to  mill  sites,  when  parties  hold  the 
possessory  right  to  a  vein  or  lode,  and  to  a  piece  of  non- 
mineral  land  not  contiguous  thereto,  for  mining  or  milling  pur- 
poses, not  exceeding  the  quantity  allowed  for  such  purposes  by 
the  local  rules,  regulations,  or  customs,  the  proprietors  of  such 
vein  or  lode  may  file  in  the  proper  Land  Office  their  application 
for  a  patent,  under  oath,  which  application,  together  with  the 
plat  and  field-notes,  may  include,  embrace,  and  describe,  in 
addition  to  the  vein  or  lode,  such  non-contiguous  mill  site ;  and 
after  due  proceedings  as  to  notice,  etc.,  a  patent  will  be  issued 
conveying  the  same  as  one  claim.2 

In  making  a  survey  in  a  case  of  this  kind,  the  lode  claim 
should  be  described  in  the  plat  and  field-notes  as  "  Lot  No.  37,  A," 
and  the  mill  site  as  "  Lot  No.  37,  B,"  or  whatever  may  be  its  ap- 
propriate numerical  designation ;  the  course  and  distance  from 
a  corner  of  the  mill  site  to  a  corner  of  the  lode  claim  to  be  in- 
variably given  in  such  plat  and  field-notes  ;  and  a  copy  of  the 
plat  and  notice  of  application  for  patent  must  be  conspicuously 
posted  upon  the  mill  site,  as  well  as  upon  the  vein  or  lode,  for 
the  statutory  period  of  sixty  days.  In  making  the  entry,  no 
separate  receipt  or  certificate  need  be  issued  for  the  mill  site  ; 
but  the  whole  area  of  both  lode  and  mill  site  will  be  embraced 
in  one  entry,  the  price  being  five  dollars  for  each  acre  and  frac- 
tional part  of  an  acre  embraced  by  such  lode  and  mill  site  claim.3 

In  case  the  owner  of  a  cp^artz  mill  or  reduction  works  is  not 
the  owner  or  claimant  of  a  vein  or  lode,  the  law  permits  him  to 
make  application  therefor,  in  the  same  manner  prescribed  for 
mining  claims,  and  after  due  notice  and  proceedings,  in  the    ab- 

1  Decision  of  Commissioner,  October  21st,  1875,  2  Copp's  Land-owner,  114. 
a  Instructions  June  10th,  is;:;,  Subdivision  87;  Land  Office  Ileport,  1872,  44; 
Instructions  Feb.  1st,  1877,  Subdivision  7J. 
«  Ibid.  Subdivision  88;  Instruction:*  Fob.  1st,  1877,  Subdivision  73. 


§§  193-5  MILL    SITES.  255 

sence  of  a  valid  adverse  filing,  to  enter  and  receive  a  patent  for 
his  mill  site  at  a  fixed  price  per  acre.1 

In  every  case  there  must  be  satisfactory  proof  that  the  land 
claimed  as  a  mill  site  is  not  mineral  in  character,  which  proof 
may,  where  the  matter  is  unquestioned,  consist  of  the  sworn 
statement  of  the  claimant,  supported  by  that  of  one  or  more 
disinterested  persons  capable  from  acquaintance  with  the  land 
to  testify  understanding^.  The  law  expressly  limits  mill  site 
locations  made  from  and  after  its  passage  to  five  acres,  but 
whether  so  much  as  that  can  be  located,  depends  upon  the  local 
customs,  rules,  or  regulations.  The  registers  and  receivers  must 
preserve  an  unbroken,  consecutive  series  of  numbers  for  all 
mineral  entries.2 

§  193.  A  mill  site  must  be  non-mineral  in  character,  and  where 
application  for  patent  for  a  mill  site  is  made,  satisfactory  proof 
must  be  furnished  that  the  land  claimed  is  not  mineral  in  character. 
Where  affidavits  did  not  allege  the  non-mineral  character  of  the 
mill  site,  but  only  alleged  that  the  same  "  did  not  to  his  (the 
claimant's)  knowledge  contain  any  vein  or  lode  of  quartz  or 
other  rock  in  place,  bearing  gold,  silver,  cinnabar,  lead,  tin,  or 
copper,"  before  patent  was  allowed  to  issue,  additional  proof 
was  required  that  there  were  no  valuable  deposits,  such  as  placer 
or  gulch  mines,  embraced  within  its  exterior  boundaries.3 

§  194.  Improvements. — The  Surveyor-General's  certificates 
attached  to  plats  of  either  lode,  placer,  or  mill  site  claims,  should 
contain  a  clause  in  regard  to  the  value  of  improvements  upon 
such  claims — that  $500  worth  of  labor  has  been  expended  or 
improvements  made  upon  the  mill  site.4 

§  195.  A  mill  site  passes  to  a  railroad  if  located  after  the 
land  inured  to  the  road.     Where  the  record  of  the  Land  Office 

1  Instructions  June  10th,  1872,  Subdivision  89 ;  Land  Office  Report,  1872,  44 ; 
Instructions  Feb.  1st,  1877,  Subdivision  74. 

2  Ibid.  Subdivisions  90,  91,  92;  Ibid.  75,  76,  77. 

3  Decision  of  Acting  Commissioner,  May  20tb,  1873;  Copp's  U.  S.  Mining  De- 
cisions, 201;  Ibid,  July  29th,  1872;  Ibid,  129. 

4  Decision  of  Commissioner,  April  16th,  1873;  Copp's  U.  S.  Mining  Decisions, 
193. 


256  MILL    SITES.  §  195 

showed  that  the  rights  of  the  railroad  company  to  a  section  of 
land  took  effect  on  the  18th  day  of  December,  1866,  that  being 
the  date  upon  which  the  route  of  the  road  was  definitely  located, 
it  was  held  that  subsequently  to  that  time  no  adverse  right 
thereto  could  attach  where  the  land  was  not  mineral  in  character.1 

1  In  re  Golconda  Mine,  Decision  of  Commissioner,  Oct.  lltb,  1872;   Copp's  U. 
S.  Mining  Decisions,  147. 


§  19G  VESTED    RIGHTS.  257 


CHAPTER  XIV. 

WATER  AND  OTHER  VESTED  RIGHTS- RIGHT  OF  WAY  FOR  CA- 
NALS AND  DITCHES  — EASEMENTS  — DRAINAGE  — STATE  AND 
TERRITORIAL  LEGISLATION  — PATENTS  SUBJECT  TO  VESTED 
RIGHTS— SUTRO  TUNNEL  ACT. 

§   1%.  State  and  Territorial  legislation— Easements — Drainage,  etc. 

§  197.  Conditions  inserted  in  the  patent. 

§  198.  Vested  rights  to  use  of  water — Right  of  way  for  canals. 

§  199.  Patents  subject  to  vested  water  rights. 

§  200.  Possessory  water  rights  confirmed. 

§  201.  Local  water  rights  protected. 

§  202.  Conditions  as  to  vested  water  rights  inserted  in  patent. 

§  203.  Mining  ditch  in  railroad  grant. 

§  204.  Conflicting  rights  of  ditch  owners  and  miners. 

§  205.  Exercise  of  eminent  domain  for  a  private  ditch  company's  use. 

§  206.  Water  rights  in  California  under  the  Codes. 

§  207.  Existing  water  rights  obtained  by  patent,  how  affected. 

§  208.  Effect  of  the  acts  upon  previous  diversion  of  water  upon  patented  lands. 

§  209.  Recognition  of  the  doctrine  of  prior  appropriation. 

§  210.  Effect  of  the  statute  upon  prior  appropriation  without  Government  title. 

§  211.  Construction  of  flumes  over  public  lands. 

§  212.  Rights  of  ditch  owners  on  public  lands. 

§  213.  Sutro  tunnel  act. 

§  214.  Conditions  inserted  in  patents  for  mines  on  Comstock  Lode.  Nevada. 

§  215.  Claims  rejected. 

§  196.  State  and  Territorial  legislation  —  Easements, 
drainage,  etc. — aAs  a  condition  of  sale,  in  the  absence  of 
necessary  legislation  by  Congress,  the  local  legislature  of  any 
State  or  Territory  may  provide  rules  for  working  mines, 
involving  easements,  drainage,  and  other  necessary  means  to 
their  complete  development ;  and  those  conditions  shall  be  fully 
expressed  in  the  patent."  1 

The  local  legislatures  authorized  to  make  laws  for  working 
the  mines. — In  order  to  embody  such  enactments  into  patents, 
registers  and  receivers  were  ordered  to  communicate  such  laws 
to  the  General  Land  Office.2     The  importance  of  this    section 

1  Rev.  Stats.  2338;  Sec.  5,  Act  1866;  14  U.  S.  Stats.  252. 

2  Instructions,  Jan,  14th,  1867,  Copp's  U.  S.  Mining  Decisions,  239. 

W.  C— 17. 


258  VESTED    RIGHTS.  §§  197-8 

consists  in  the  conditions  to  be  expressed  in  the  patent,  as  the 
tenure  under  which  the  title  is  held.  If  a  patent  had  issued 
without  such  expressed  conditions  in  it,  or  legally  implied  from 
the  law,  serious  questions  might  arise  as  to  legislative  control 
over  a  title  emanating  from  the  United  States,  without  such 
conditions.1 

§  197.  Conditions  inserted  in  the  patent. — In  every  pat- 
ent issued  for  either  a  lode  or  placer  claim  a  condition  is  inserted 
to  the  following  effect :  "  That  in  absence  of  necessary  legisla- 
tion by  Congress,  the  legislature  of may  provide  rules  for 

working  the  mine  hereby  granted,  involving  easements,  drainage, 
and  other  necessary  means  to  its  complete  development." 

This  condition  gives  to  the  legislature  of  the  State  or  Terri- 
tory in  which  a  patented  claim  is  situated,  ample  power  and 
authority  for  the  enactment  of  all  necessary  rules  and  regula- 
tions for  the  proper  working  and  development  of  the  mines,  and 
this  as  completely  in  regard  to  water  ditches  and  flumes  as  in 
any  other  respect,  if  parties  have  by  virtue  of  compliance  with 
local  laws,  customs,  or  regulations  of  miners,  or  by  decisions 
of  Courts,  acquired  the  right  to  construct  and  maintain  ditches 
or  flumes  across 'the  mining  grounds  occupied  by  others. 

It  was  the  intention  of  the  Land  Office  under  the  act  that  ac- 
quired rights  to  construct  and  maintain  ditches  or  flumes  across 
the  mining  ground  occupied  by  others,  should  be  protected  and 
not  impaired  by  the  issuance  of  the  patent.  The  aid  of  the 
Courts  may  be  invoked  as  well  after  as  before  the  issuance  of  a 
patent.2 

§  198.  Vested  rights  to  use  of  water — Right  of  way 
for  canals. — Sec.  2339  of  the  Revised  Statutes  reads  :  "  When- 
ever, by  priority  of  possession,  rights  to  the  use  of  water  for 
mining,  agricultural,  manufacturing,  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognized  and  acknowl- 
edged by  the  local  customs,  laws,  and  the  decisions  of  Courts, 
the  possessore  and  owners  of  such  vested  rights  shall   be   main- 

1  bale's  Mining  Claims,  371. 

-  Decision  of  Commissioner,  April  16th,  1871,  Copp's  U.  S.  Mining  Decisions, 
42,  Application  of  Taylor  &  Smith. 


§§  199-200  VESTED    RIGHTS.  259 

taincd  and  protected  in  the  same  ;  and  the  right  of  way  for  the 
construction  of  ditches  and  canals  for  the  purposes  herein  spec- 
ified is  acknowledged  and  confirmed  ;  but  whenever  any  person, 
in  the  construction  of  any  ditch  or  canal,  injures  or  damages 
the  possession  of  any  settler  on  the  public  domain,  the  party 
committing  such  injury  or  damage  shall  be  liable  to  the  party 
injured  for  such  injury  or  damage."  * 

§  199.  Patents  subject  to  vested  water  rights. — Sec. 
2340  of  the  Revised  Statutes  reads :  "  All  patents  granted,  or 
pre-emption  or  homesteads  allowed,  shall  be  subject  to  any 
vested  and  accrued  water  rights,  or  rights  to  ditches  or  reser- 
voirs used  in  connection  with  such  water  rights,  as  may  have 
been  acquired  under  or  recognized  by  the  preceding  sec- 
tion."2 

§  200.  Possessory  water  rights  confirmed. — These  pro- 
visions relate  to  the  appropriation  and  use  of  water  for  agricul- 
ture and  other  purposes,  as  well  as  for  mining.  The  State  laws 
and  decisions  of  the  Courts  and  the  local  customs  are  recog- 
nized and  confirmed.  The  act  treats  the  appropriation  of  water 
so  recognized  as  a  vested  right,  by  which  designation  something 
more  than  a  possessory  right  to  mining  claims  is  implied.  By 
the  ninth  section  of  the  act  of  Congress  for  the  sale  of  public 
lands  in  the  territory  northwest  of  the  Ohio  and  above  the 
mouth  of  the  Kentucky,  after  the  ordinance  of  1785,  under 
date  of  the  18th  of  May,  1796,  it  was  provided  that  all  naviga- 
ble rivers  within  the  territory  to  be  disposed  of,  by  virtue  of 
this  act,  shall  be  deemed  to   be  and  remain  public  highways  ; 

1  Rev.  Stats.  2339;  Sec.  9,  Act  1866,  14  U.  S.  Stats.  253;  see  Rev.  Stats.  2324. 

2  Rev.  Stats.  2340.    See  Rev.  Stats.  Sees.  2338,  2339,  2344. 

Sec.  17,  Act  of  1S70,  1G  U.  S.  Stats.  218,  reads:  "That  none  of  the  rights  con- 
ferred by  Sees.  5,  8,  9,  of  the  act  to  which  this  act  is  amendatory  shall  be  abro- 
gated by  this  act,  and  the  same  are  hereby  extended  to  all  public  lands  affected 
by  this  act;  and  all  patents  granted,  or  pre-emption  or  homesteads  allowed, 
shall  be  subject  to  any  vested  and  accrued  water  rights,  or  rights  to  ditches  and 
reservoirs  used  in  connection  with  such  water  rights  as  may  have  been  acquired 
under  or  recognized  by  the  ninth  section  of  the  act  of  which  this  is  amendatory. 
But  nothing  in  this  act  shall  be  construed  to  repeal,  impair,  or  in  any  way  affect 
the  provisions  of  the  '  Act  granting  to  A.  Sutro  the  right  of  way  and  other  priv- 
ileges to  aid  in  the  construction  of  a  draining  and  exploring  tunnel  to  the  Corn- 
stock  Lode,  in  the  State  of  Nevada,  approved  July  25th,  1866.'  " 


260  VESTED   RIGHTS.  §  201 

and  that  in  all  cases  where  the  opposite  banks  of  any  stream 
not  navigable  shall  belong  to  different  persons,  the  stream  and 
the  bed  thereof  shall  become  common  to  both.1 

This  provision  is  still  regarded  as  in  force,  and  was  by  numer- 
ous amendatory  acts  continued  in  force,  and  made  applicable  to 
other  parts  of  the  country  containing  public  lands. 

The  language  of  the  Act  of  1866  confirms  the  doctrine  of 
appropriation,  introduced  by  the  California  Courts. 

It  makes  the  right  a  confirmation  in  presenti  as  to  the  claims 
included,  without  any  preliminary  proceedings  to  obtain  a  title, 
as  in  the  case  of  a  mining  claim.  A  grant  by  act  of  Congress 
is  the  highest  source  of  title  known  to  the  law.2 

§  201.  Local  water  rights  protected.— The  Act  of  1866 
was  the  result  of  a  policy  on  the  part  of  Congress,  seeking  to 
harmonize  the  right  of  sovereignty  of  the  soil,  inherent  in  the 
General  Government,  with  certain  possessory  rights  growing 
out  of  the  peculiar  condition  of  things  found  in  the  mining 
States  and  Territories  of  the  West,  which  had  become  engrafted 
upon  the  public  lands  through  the  operation  of  local  customs 
and  legislative  enactments.  Its  object  was  to  furnish  a  method 
of  dealing  with  these  conflicting  interests  so  as  not  to  impair 
the  validity  of  either.  It  recognizes  and  preserves  such  posses- 
sory claims  as  are  valid  and  effective  under  local  regulations, 
but  it  docs  not  create  them.  It  substantially  embodies  a  stipu- 
lation that  the  General  Government,  in  disposing  of  the  public 
domain,  will  proceed  in  such  a  manner  as  to  protect  such  rights 
of  possession  to  the  same  as  claimants  may  be  entitled  to,  under 
such  local  customs  or  laws  at  the  time  of  the  sale  by  the  United 
States.  But  these  rights  derive  all  their  vitality  from  local  reg- 
ulations. The  act  of  Congress  imparts  none.  It  respects  those 
existing  at  the  date  of  the  sale  of  the  public  lands,  but  super- 
adds nothing  to  their  efficacy  under  the  local  laws. 

The  United  States  will,  therefore,  under  the  ninth  section, 
maintain  and  protect  such  water  rights  as  have  vested  and  ac- 
crued by  priority  of  possession,  and  which  at  the  time  of  such 
disposal    are   recognized  and   acknowledged  by  local  customs, 

i  1  Stats.  46L  2 Yale's  Mining  Claims,  ."379,  380. 


§§  202-4  VESTED   RIGHTS.  261 

laws,  and  decisions  of  Courts,  by  which  those  rights  are  primar- 
ily regulated.1 

§  202.  Conditions  as  to  vested  water  rights  inserted  in 
patent. — To  avoid  all  misapprehension  and  uncertainty  it  was 
determined  by  the  Land  Office  in  all  patents  granted  in  mineral 
regions  of  the  United  States,  to  insert  an  additional  clause  or 
condition  expressly  reserving  and  protecting  water  rights,  and 
making  the  patent  subject  thereto  the  same  as  before  it  was 
granted.2 

Water  privileges  are,  since  May  10th,  1872,  located  in  the 
same  manner  as  mines,  subject  to  local  regulations,  i.  e.  by  def- 
initely locating  the  five  acres  by  monuments,  and  recording 
with  the  district  or  county  recorder.  If  the  local  rules  and  de- 
cisions of  Courts  make  the  privilege  forfeitable  for  non-user, 
another  party  may  come  in  and  claim  the  water-right.3 

§  203.  Mining  ditch  in  railroad  grant. — A  grantee  of  a 
railroad  company  brought  suit  to  abate  a  water  ditch  as  a  nuis- 
ance. The  defendant  showed  that  prior  to  the  Act  of  Congress 
of  July  26th,  1866,  it  had  acquired  a  right  to  the  use  of  the 
water  of  a  mining  ditch,  "which  right  was  recognized  and  ac- 
knowledged  by  the  local  customs,  laws,  and  decisions  of  Courts." 
That  act  operated  a  grant  to  it  of  the  right  of  way,  and  of  the 
ditch  through  which  the  water  was  running  at  the  date  of  the 

©  © 

passage  of  the  act.  The  subsequent  grantees  of  the  United 
States  of  tracts  through  which  the  ditch  ran,  were  held  to  take 
subject  to  this  easement,  and  judgment  went  for  defendant.4 

§  204.   Conflicting  rights  of   ditch-owners  and  miners. 

— In  an  application  by  a  ditch-owner  for  an  injunction  to  pre- 
vent miners  from  excavating  across  the  plaintiff's  ditch,  plaint- 
iff claimed  under  the  Act  of  Congress  of  1866  and  the  Act  of 
1870.  The  provisions  of  these  statutes  and  of  the  Act  of  1872,  it 
was  held,  should  be  considered  and  construed  together,  and  it 

1  Decision  of  Commissioner,  November  23d,   1869,   Copp's  U.  S.  Mining  De- 
cisions, 24. 

2  Ibid.  March  21st,  1872,  Ibid.  82. 
8 1  Copp's  Land-owner,  31. 

4  Broder  v.  Natoma  W.  &  M.  Co.  50  Cal.  621. 


262  .  VESTED    RIGHTS.  §  205 

was  considered  apparent  that  it  was  the  purpose  of  the  legisla- 
ture, taken  as  a  whole,  to  recognize  in  and  conform  to  the 
respective  classes  of  licenses  therein  mentioned,  the  same  rights 
which  were  accorded  to  them  by  the  State  Courts  prior  to  the 
passage  of  the  acts  of  Congress. 

It  was  further  said  that  there  was  nothing  in  the  ninth  section 
of  the  Act  of  1866  which  made  the  defendant's  right  to  pos- 
sess and  enjoy  his  mining  claim  subordinate  to  the  right  of 
plaintiff  to  construct  his  ditch.  The  clause,  "  and  the  right  of 
way  for  the  construction  of  ditches  and  canals  for  the  purposes 
aforesaid  is  hereby  acknowledged  and  confirmed,"  cannot  be 
construed  to  enlarge  the  grant  to  ditch-owners,  so  as  to  include 
a  right  not  "  recognized  and  acknowledged  by  the  local  customs, 
laws,  and  the  decisions  of  the  Courts."  Nor  does  the  proviso 
authorize  the  construction  of  a  ditch  or  canal  across  the  mining 
claim  of  another,  whatever  may  be  its  effect  in  respect  to  "  set- 
tlers "  on  agricultural  lands  of  the  United  States.1 

§  205.  Exercise  of  eminent  domain  for  a  private  ditch 
company's  use. — In  a  California  case,2  a  plaintiff  sought  to  pro- 
cure, by  condemnation,  certain  lands  to  serve  as  a  site  for  a  bed- 
rock flume  to  carry  the  dirt  and  gravel  from  its  mining  claims  ; 
and  also  as  a  place  of  deposit  for  the  tailings  and  refuse  matter 
from  its  claims.  A  demurrer  to  the  complaint  raised  the  ques- 
tion of  the  constitutionality  of  Subdivision  five  of  Section  1238 
of  the  Code  of  Civil  Procedure  of  that  State,  authorizing  pro- 
ceedings of  this  character. 

This  statute  provides  that  the  right  of  eminent  domain  may 
be  exercised  in  behalf  of  certain  enumerated  public  uses,  and 
in  subdivision  five,  names  among  other  things  "  tunnels,  ditches, 
flumes,  pipes  and  dumping  places  for  working  mines  ;  also,  out- 
lets, natural  or  otherwise,  for  the  flow,  deposit  or  conduct  of 
tailings  or  refuse  matter  from  the  mines." 

It  wus  clear  from  the  averments  of  the  complaint  that  the 
object  sought  was  the  appropriation  of  the  private  property  of 

iTiU'.nili  v.  Kirk,  No.  4473,  May  5th,  187G,  Supreme  Court  of  California,  un- 
reported. 

-Consolidated  channel  Company  v.  Central  Paciiic  Railroad  Co.,  No.  49G0, 
April  3d,  1H7G.      April  3d,  L876,  51  Cal.  269, 


§  205  VESTED    RIGHTS  263 

the  defendants  to  the  private  use  of  the  plaintiff.  The  proposed 
flume  was  to  be  constructed  solely  for  the  purpose  of  advanta- 
geously and  profitably  washing  and  mining  the  plaintiff's  min- 
ing ground.  It  was  not  pretended  that  any  person  other  than 
the  plaintiff  would  derive  any  benefit  whatever  from  the  struct- 
ure when  completed.  Niles,  J.,  delivering  the  opinion  of  the 
Court,  said :  "No  public  use  can  possibly  be  subserved  by  it. 
It  is  a  private  enterprise,  to  be  conducted  solely  for  the  personal 
profit  of  the  plaintiff,  and  in  which  the  community  at  large 
have  no  concern.  It  is  clear  that  this  case  does  not  come  within 
the  meaning  of  that  clause  of  the  Constitution  which  permits 
the  taking  of  private  property  for  a  public  use  after  just  com- 
pensation made. 

"  In  the  case  of  Loan  Association  v.  The  City  of  Topeka, 
(20  Wal.  655)  the  defendant,  acting  under  the  authority  of  an 
act  of  the  legislature  of  Kansas,  had  issued  certain  bonds  to 
the  plaintiff  as  a  donation  to  encourage  that  company  in  its  de- 
sire of  establishing  a  manufactory  of  iron  bridges  in  that  city. 
The  act  gave  to  the  city  council  '  power  to  encourage  the  es- 
tablishment of  manufactories,  and  such  other  enterprises  as  may 
tend  to  develop  and  improve  such  city,  either  by  direct  appro- 
priation from  the  general  fund,  or  by  the  issuance  of  bonds  of 
such  city  in  such  amounts  as  the  council  may  determine.' 

"  The  Court  held  that  the  purpose  for  which  the  bonds  were 
issued  was  not  of  a  public  character  ;  that  the  statute  author- 
izing their  issue  was  unconstitutional  and  void,  and  that  no 
lawful  tax  could  be  levied  for  their  payment.  Mr.  Justice 
Miller  said,  in  announcing  the  opinion  of  the  Court :  '  If  it 
be  said  that  a  benefit  results  to  the  local  public  of  a  town  by 
establishing  manufactures,  the  same  may  be  said  of  any  other 
business  or  pursuit  which  employs  capital  or  labor.  The 
merchant,  the  mechanic,  the  innkeeper,  the  banker,  the  builder, 
the  steamboat  owner,  are  equally  promoters  of  the  public  good, 
and  equally  deserving  the  aid  of  the  citizens  by  forced  contri- 
butions. No  line  can  be  drawn  in  favor  of  the  manufacturer, 
which  would  not  open  the  coffers  of  the  public  treasury  to  the 
importunities  of  two-thirds  of  the  business  men  of  the  city  or 
town.' 

"  The  reasoning  of  that  opinion  is  applicable  to  the  present 


264  VESTED   RIGHTS.  §  206 

case.  It  is  not  competent  for  the  legislature  to  authorize  the 
levy  of  a  public  tax,  or  the  taking  of  private  property,  for  the 
encouragement  of  a  purely  private  industry. 

"  But  it  is  contended  by  the  counsel  for  the  plaintiff  that  the 
statute  referred  to  (Section  1238,  Subdivision  5,  C.  C.  P.)  is  a 
legislative  declaration  that  the  construction  of  ditches,  flumes, 
and  dumping  places  for  working  mines  are  public  uses,  in  behalf 
of  which  the  right  of  eminent  domain  may  be  exercised ;  and 
they  invoke  the  doctrine  that  the  judgment  of  the  legislature 
upon  such  questions  is  conclusive,  and  not  open  to  review  by 
the  judicial  department  of  the  Government.  Without  doubt  it 
is  the  general  rule,  that  where  there  is  any  doubt  whether  the 
use  to  which  the  property  is  proposed  to  be  devoted  is  of  a 
public  or  private  character,  it  is  a  matter  to  be  determined  by 
the  legislature,  and  the  Courts  will  not  undertake  to  disturb  its 
judgment  in  this  regard.  This  cpuestion  was  fully  discussed 
and  the  doctrine  established  in  the  case  of  S.  and  V.  R.  K.  Co. 
v.  City  of  Stockton,  41  Cal.  147.  But  in  the  same  case  an 
exception  to  the  general  rule  is  recognized.  It  is  said :  'A  case 
might,  indeed,  be  presented,  in  which  it  might  appear,  beyond 
the  possibility  of  a  question,  that  a  tax  had  been  imposed,  or 
the  property  of  a  citizen  had  been  taken  for  a  use  or  purpose  in 
no  sense  public ;  or,  in  the  language  of  Chancellor  "Walworth, 
(5  Paige,  159)  "  where  there  was  no  foundation  for  a  pretense 
that  the  public  was  to  be  benefited  thereby  "  ;  and  in  such  case 
it  would  be  our  duty  to  interfere  and  afford  relief.' 

"It  would  be  difficult  to  suppose  a  case  more  completely 
within  the  exception  stated,  and  in  which  the  absence  of  all 
possible  public  interest  in  the  purposes  for  which  the  land  is 
sought  to  be  condemned  is  more  clear  and  palpable,  than  in  the 
case  ;it  bar." 

§  206.  Water  rights  in  California  under  the  codes. — The 
right  to  tin1  use  of  running  water  flowing  in  a  river  or  stream, 

0  BO 

(ii-  down  ;i  canon  or  ravine,  may  bo  acquired  by  appropriation.1 

1  civil  <:.„](•  of  Cal.  Sec,  i  in).  Eddy  u.  Simpson,  •"■  Cal.  249;  Irwin  y.  Phillips,  0 

i  10;  I ;  ..1.1  v.  Laird,  r>  Cal.  J<il ;  Eoffman  <'.  Stone,  7  Cal.  49;  McDonald  v. 
Beai  RiveH  o.  l3Cal.  220;  Ortmanw.  Dixon,  13  Cal. 34;  Eupley v.  Welch, 23  Cal. 
462;  MoDonald  v.  Askew,  20  Cal.  200;  Nevada  W>terCo.  v.  1'owell  J4  Cal.  109; 


§  206  VESTED    EIGHTS.  265 

The  appropriation  must  be  for  some  useful  or  beneficial  purpose, 
and  when  the  appropriator  or  his  successor  in  interest  ceases 
to  use  it  for  such  a  purpose,  the  right  ceases.1  The  person  en- 
titled to  the  use  may  change  the  place  of  diversion,  if  others 
are  not  injured  by  such  change,  and  may  extend  the  ditch, 
flume,  pipe,  or  aqueduct  by  which  the  diversion  is  made,  to 
places  beyond  that  where  the  first  use  was  made.2  The  water 
appropxviated  may  be  turned  into  the  channel  of  another  stream 
and  mingled  with  its  water,  and  then  reclaimed  ;  but  in  reclaim- 
ing it,  the  water  already  appropriated  by  another  must  not  be 
diminished.3  As  between  appropriators  the  one  first  in  time  is 
the  first  in  right.4  A  person  desiring  to  appropriate  water  must 
post  a  notice,  in  writing,  in  a  conspicuous  place  at  the  point  of 
intended  diversion,  stating  therein  : 

1st.  That  he  claims  the  water  there  flowing  to  the  extent  of 
(giving  the  number)  inches,  measured  under  a  four-inch 
pressure. 

2d.  The  purpose  for  which  he  claims  it,  and  the  place  of  in- 
tended use. 

3d.  The  means  by  which  he  intends  to  divert  it,  and  the  size 
of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends  to 
divert  it. 

A  copy  of  the  notice  must,  within  ten  days  after  it  is  posted, 
be  recorded  in  the  office  of  the  recorder  of  the  county  in  which 
it  is  posted.5     Within  sixty  days  after  the  notice  is  posted,  the 

Davis  v.  Gale,  32  Cal.  26.  "Water  flowing  in  a  ditch  not  the  subject  of  actual 
partition;  sale  and  distribution,  the  only  mode  of  disposing  of  it.  McGillivray 
v.  Evans,  27  Cal.  92. 

1  Civil  Code  Cal.  1411;  Weaver  v.  Eureka  Lake  Co.  15  Cal.  271;  McKinney  v. 
Smith,  21  Cal.  374;  Hill  v.  Smith,  27  Cal.  476;  American  Co.  v.  Bradford,  27  Cal. 
360;  Ortman  v.  Dixon,  13  Cal.  34;  McDonald  v.  Bear  Eiver  Co.  13  Cal.  220;  Davis 
v.  Gale,  32  Cal.  22;  Nevada  Water  Co.  v.  Powell,  34  Cal.  10D. 

2  Civil  Code  Cal.  Sec.  1412;  Kidd  v.  Laird,  15  Cal.  161;  Butte  Table  Mt.  Co.  v. 
Morgan,  19  Cal.  609;  Union  Water  Co.  v.  Crary,  25  Cal.  504. 

3  Civil  Code  Cal.  1413;  Richardson  v.  Kier,  34  Cal.  63;  Butte  Canal  and  Ditch 
Co.  v.  Vaughan,  11  Cal.  143;  Hoffman  v.  Stone,  7  Cal.  46. 

4  Butte  Canal  and  Ditch  Company  v.  Vaughan,  11  Cal.  143;  Kidd  v.  Laird,  51 
Cal.  161;  Weaver  v.  Conger,  10  Cal.  233:  B.  R.  &  A.  W.  &  M.  Co.  v.  K  Y.  Co.  8 
Cal.  327;  Hill  v.  King,  8  Cal.  330;  Davis  v.  Gale,  32  Cal.  26;  Eddy  v.  Simpson,  3 
Cal.  249;  Irwin  v.  Phillips,  5  Cal.  140;  Maeris  v.  Bicknell,  7  Cal.  261;  McDonald 
v.  Askew,  29  Cal.  200;  Ortman  v.  Dickson,  13  Cal.  33;  Phoenix  Water  Co.  ». 
Fletcher,  23  Cal.  481;  Civil  Code  Cal.  3525. 

5  Civil  Code  Cal.  Sec.  1415;  Thompson  v.  Lee,  8  Cal.  275;  Weaver  v.  Eureka 


266  VESTED   RIGHTS.  §  207 

claimant  must  commence  the  excavation  or  construction  of  the 
works  in  which  he  intends  to  divert  the  water,  and  must  prose- 
cute the  work  diligently  and  uninterruptedly  to  completion, 
unless  temporarily  interrupted  by  snow  or  rain.1  By  "  comple- 
tion "  is  meant  conducting  the  waters  to  the  place  of  intended 
use.2  By  a  compliance  with  the  above  rules,  the  claimant's 
right  to  the  use  of  water  relates  back  to  the  time  the  notice  was 
posted.3  A  failure  to  comply  with  such  rules  deprives  the 
claimant  of  the  right  to  the  use  of  the  water  as  against  a  subse- 
quent claimant  who  complies  therewith.4  Persons  who  have 
heretofore  claimed  the  right  to  water,  and  who  have  not  con- 
structed works  in  which  to  divert  it,  and  who  have  not  diverted 
nor  applied  it  to  some  useful  purpose,  must  proceed  as  in  the 
Title  provided,  or  their  right  ceases. 

The  recorder  of  each  county  must  keep  a  book  in  which  he 
must  record  the  notices  provided  for.  The  rights  of  riparian 
proprietors  are  not  affected  by  the  provisions  of  the  Title.5 

§  207.  Existing  water  rights  obtained  by  patent  not 
affected. — The  status  of  water  rights  obtained  through  patent 
was  carefully  examined  in  the  case  of  Union  M.  Co.  v.  Ferris, 
2  Sawyer,  U.  S.  C  C.  176,  a  case  arising  in  the  United  States 
Circuit  Court  for  Nevada.  The  effect  of  the  Act  of  1866  upon 
existing  water  rights  obtained  through  a  patent  from  the  United 
States  was  thoroughly  discussed.  The  action  was  commenced 
to  enjoin  the  defendant  from  an  alleged  wrongful  diversion  of 
water  from  Carson  River,  Nevada.  Plaintiff's  grantors  had  lo- 
cated as  a  possessory  claim  the  land  upon  which  a  certain  mill 
was  constructed.  A  dam  and  mill-race  for  conducting  the  water 
to  the   mill  were  also  made.     The  mill  had  been  propelled  by 

Lake  Co.  15  Cal.  271;  Kimball  v.  Gearheart,  12  Cal.  27;  Parke  v.  Kilham,  8 
CaL  77. 

1  Civil  Code  Cal.  Sec.  141G ;  Kimball  v.  Gearhart,  12  Cal.  27;  Weaver  v.  Eureka 
Lake  Co.  16  Cal.  '-'71 ;  Thompson  v.  Lee,  8  Cal.  275. 

-civil  Code  CaL  Bee.  1417. 

::  civil  Code  Cal.  See.  1418;  Kimball  u.  ( learheart,  12  Cal.  27;  Weaver  v.  Eureka 
Lake  Co.  16  CaL  271. 

-1  Civil  Code  CaL  Sec  1419;  as  to  construction  of  rules  as  to  forfeiture  of  pos- 
sessory riglits.  c,,lrmaii  r.  Clements,  23  Cal.  245;  Wiseman?'.  McNulty,  25  Cal. 
230;  St.  Johns  v.  Kidd,  26  Cal.  263;  Packer  v.  Ileaton,  !)  CaL  6158;  McGarrity  v. 
Byington,  12  Cal.  4ji;. 

6  Civil  Code  Cal.  Sees.  1420,  1421,  1422. 


§  207  VESTED    RIGHTS.  267 

* 

the  water  of  the  river,  and  been  run  for  the  purpose  of  reduc- 
ing metalliferous  ores.  The  plaintiff  had  become  the  owner  in 
fee  of  the  land,  having  procured  patents  from  the  United  States. 
The  waters  of  the  river  naturally  flowed  through  the  land.  It 
was  found  that  the  plaintiff,  by  virtue  of  his  ownership  of  the 
lower  premises,  had  a  right  to  have  the  water  of  the  river  flow 
through  the  premises,  unaffected  by  any  right  arising  out  of  an 
adverse  use  as  against  the  upper  premises,  unless  there  was 
something  in  the  Act  of  July  26th,  1866,  qualifying  that  right 
in  respect  to  the  lower  premises.  The  effect  of  this  act  was 
then  considered,  and  especially  the  effect  of  the  ninth  section.1 
The  act  was  held  not  to  qualify  in  any  manner  the  patent  of 
either  plaintiff  or  defendant,  as  the  act  was  general  and  did  not 
operate  retrospectively,  and  was  passed  subsequently  to  the  pat- 
ents. Hillyer,  U.  S.  District  Judge  for  Nevada,  in  arriving  at 
the  above  conclusion,  said  : 

"  Prior  to  the  passage  of  this  act,  the  policy  of  Congress  had 
been,  as  shown  by  its  legislation,  to  grant  to  purchasers  of  the 
public  land  the  bed  of  a  non-navigable  stream  flowing  through 
the  land  sold,  and  the  lines   of  sections  were  run  without  refer- 
ence to  the  meanderings  of  such  stream  ;  so  that  the  purchaser 
of  land  through  which  a  non-navigable  stream  flowed,  took  the 
bed  of  the  stream  and  such  riparian  rights  to  the  water  of  the 
stream  as  belong  to  the  owner  of  the  soil.  Several  attempts  had 
been  made  to  provide  by  law  for  the  survey  and  sale  of  the  min- 
eral lands  ;  the   survey  to  be   rectangular,  as   in  case  of  other 
lands.     These  attempts  had  always  been  successfully  resisted  by 
mining  communities,  because,  among  other  reasons,  such  a  sur- 
vey and  sale  would  have  been  ruinous  to  the  possessors  of  quartz 
lodes,  which  do  not  descend  perpendicularly,  but  at  a  greater  or 
less  angle.     For  seventeen  years  prior  to  1866,  the  mineral  land 
of  California  and  Nevada  had  been  occupied  by  citizens  of  the 
United  States,  without  objection  on  the  part  of  the   Govern- 
ment ;  canals  and  ditches  were  duo:  during  this  time,  often  at 
great    expense,    over  the  public    lands,   and    the  water  of  the 
streams  diverted  by  these  means  for  mining  and  other  purposes. 
Local  customs  grew  up  in  the  mining  districts  by  common  con- 

1 14  U.  S.  Stats.  253,  same  as  Rev.  Stats.  2339. 


268  VESTED    RIGHTS.  §  207 

sent,  and  by  rules  adopted  at  miners'  meetings  for  governing  the 
location,  recording,  and  working  of  mining  claims,  in  the  partic- 
ular mining  districts.  Possessory  rights  to  public  lands,  mining 
claims,  and  water  were  regulated  by  State  statutes,  and  enforced 
in  the  State  Courts.  The  rules,  customs,  and  regulations  of  the 
miners  were  also  recognized  by  the  Courts  and  enforced  in  trials 
of  mining  rights.  The  Courts  not  applying,  in  all  respects,  the 
doctrines  of  the  common  law  respecting  riparian  owners  in  de- 
ciding between  these  possessors,  none  of  whom  had  title  to  the 
soil,  recognized  a  species  of  property  in  running  water,  and  held 
that  he  who  first  appropriated  the  waters  of  a  stream  to  a  bene- 
ficial purpose,  had,  to  the  extent  of  his  appropriation,  the  bet- 
ter right  as  against  persons  subsequently  locating  on  the  stream 
above  or  below  ;  and  that  the  first  appropriator  might  conduct 
the  water  in  canals,  ditches,  and  flumes  wheresoever  he  pleased, 
and  apply  it  to  whatsoever  beneficial  purpose  he  saw  fit,  without 
any  obligation  to  return  it  to  the  stream  whence  it  was  taken, 
or  preserve  its  purity  or  quantity.  (Kidd  v.  Laird,  15  Cal.  161 ; 
Weaver  v.  Eureka  Lake  Co.  Id.  271 ;  Lobdell  v.  Simpson,  2 
Nev.  272 ;  Ophir  S.  M.  Co.  v.  C.  Carpenter  et  al.  4  Nev.  534.) 
In  this  posture  of  affairs,  the  persons  who  had  constructed  these 
canals  and  ditches,  at  an  expense  of  hundreds  of  thousands  of 
dollars,  in  many  instances,  over  the  public  land,  saw  Avhen  the 
question  of  the  sale  of  those  lands  was  agitated,  that  should 
such  sale  be  made,  they,  as  to  these  possessory  rights,  would  be 
at  the  mercy  of  the  buyer  of  the  legal  title,  without  some  pro- 
tective legislation. 

"The  Act  of  1866,  Section  9,  of  which  we  have  quoted  in  part, 
was  a  consequence  of  this  state  of  things.  It  gives  the  posses- 
sor of  ;i  quartz  lode  a  right  of  pre-emption,  and  it  declares  that 
the  person  who  has  acquired  a  right  to  the  use  of  water,  by 
priority  of  possession,  shall  be  maintained  and  protected  in  the 
same,  if  such  right  is  recognized  and  acknowledged  by  the  local 
customs,  laws,  and  decisions  of  Courts.  The  policy  of  this 
enactmenl — so  far,  at  least,  as  it  relates  to  agricultural  districts 
— may  be  doubt  fill  ;  but  il  is  llu:  law  of  the  land,  and  the  Courts 
unit  carry  out  what  appears  to  be  the  intention  of  the  legislature 
ae  therein  expressed.  And  that,  as  indicated  by  the  act,  appears 
to  be  to  granl   to  the  owner  of  possessory  rights  to  the  use  of 


§   207  VESTED    RIGHTS.  269 

water,  under  the  local  customs,  laws,  and  decisions,  the  absolute 
right  to  such  use,  which  the  Government  alone  could  grant. 
Under  this  laAv,  when  a  possessory  right  to  the  use  of  water  is 
claimed,  whether  or  not  such  right  exists,  will  be  determined 
by  reference  to  the  local  customs,  laws,  and  decisions,  and  the 
question  will  be  determined  just  as  it  would  have  been  had  it 
been  raised  between  occupants  before  the  title  to  the  land  had 
passed  from  the  Government.  When  the  right  is  thus  ascer- 
tained, the  statute  has  the  force  of  confirming  it  to  the  person 
entitled  under  the  local  laws  and  decisions.  But  the  act  is 
prospective  in  its  operation,  and  cannot  be  construed  so  as  to 
divest  a  part  of  an  estate  granted  before  its  passage.  If  it  be 
admitted  that  Congress  has  the  power  to  divest  a  vested  right 
by  giving  a  statute  a  retrospective  operation,  that  interpretation 
will  never  be  adopted  Avithout  absolute  necessity.  (Blanchard 
v.  Sprague,  3  Sum.  535 ;  Vansickle  v.  Haines,  7  Nev.  249.) 

"  But  if,  when  the  act  was  passed,  the  defendant  had  such  a 
right,  by  priority  of  possession,  as  that  act  contemplates,  upon 
the  construction  which  must  be  given,  that  right  is  confirmed  in 
him,  and  he  is  entitled  to  protection  as  against  one  claiming  as 
riparian  proprietor  merely,  through  a  patent  issued  after,  and 
when  no  right  had  vested  in  the  patentee,  before  the  act  became 
a  law.  The  statute  is,  in  effect,  incorporated  into  such  subse- 
quent patent,  and  operates  as  an  exception  out  of  the  estate 
granted  to  the  complainant  by  the  patent  of  October  10th,  1866. 
If  we  have  rightly  interpreted  the  act  of  Congress,  and  the 
operation  of  the  patents  issued  before  and  after  the  passage  of 
that  act  is  as  we  have  stated,  the  case  stands  in  this  wise :  The 
defendant's  claim,  by  virtue  of  adverse  enjoyment,  falls  to  the 
ground,  because  sufficient  time  has  not  elapsed  since  the  lower 
premises  were  conveyed  by  the  Government.  He  cannot  sustain 
his  claim  by  force  of  the  act  of  Congress,  because  the  complain- 
ant's patents  of  September,  1864,  were  made  before  the  act  was 
passed,  and  conveyed  the  upper  premises  absolutely,  and  free  from 
any  claims  by  prior  possession  merely.  We  have  hitherto  been 
considering  the  questions  of  prescription  and  the  act  of  Congress 
separately,  as  it  was  desirable  to  determine  the  effect  of  the  act, 
and  of  the  patents  upon  these  water  rights.  But  the  complain- 
ant, having  taken  the  lower  premises,  subject  to'  such  right  as 


270  VESTED    EIGHTS.  §  208 

the  defendant  had  acquired  by  priority  of  possession  and  the 
Act  of  Congress  of  1866,  if  he  had  also  acquired  by  adverse 
use  a  right,  as  against  the  proprietors  of  the  upper  premises,  to 
divert  and  use  the  same  quantity  of  water  in  the  same  manner 
that  he  would  have  by  virtue  of  his  prior  appropriation,  this 
would  be  a  complete  defense  to  this  action,  for  the  complain- 
ant's right  would  not  be  infringed  by  the  diversion,  either  as 
proprietor  of  the  upper  or  lower  premises.  It  is,  therefore, 
necessary  to  ascertain  whether  there  has  been,  in  fact,  such 
adverse  use  by  defendant  as  affords  a  presumption  of  a  grant 
from  the  proprietors  of  the  upper  premises  of  the  complainant." 

After  a  review  of  the  testimony,  this  claim  of  defendants  to  a 
prescriptive  right  was  denied.  The  diversion  and,  to  some  extent, 
unreasonable  use  by  defendant  was  established,  but  the  case  was 
referred  to  a  master  for  further  testimony,  in  order  to  ascertain 
what  kind  of  a  decree  should  be  entered.1 

As  the  patent  to  agricultural  land,  when  issued,  relates  back 
to  the  inception  of  title,  i.  e.  the  original  entry  and  payment, 
one  who  entered  and  paid  for  this  land  prior  to  the  passage  of 
the  Act  of  1866,  has  his  land  and  the  water  upon  it  unaffected 
by  that  act.2 

§  208.  Effect  upon  previous  diversion  of  water  on 
patented  lands. — In  Van  Sickle  v.  Haines,3  the  Supreme 
Court  of  Nevada  found  occasion  to  discuss  the  effect  of  the  Act 
of  1866  upon  water  rights  and  the  prior  diversion  of  water  upon 
the  public  lands.  The  action  was  for  damages,  and  an  injunc- 
tion to  restrain  further  diversion  of  a  portion  of  a  small  tributary 
of  the  Carson  River  in  the  State  of  Nevada,  and  called  Daggett 
Creek.  In  1857  the  plaintiff  had  diverted  by  a  ditch,  for 
irrigating  and  domestic  purposes,  one-fourth  of  the  water  of  the 
creek.  He  made  the  diversion  at  a  point  then  on  the  public 
land,  but  which,  in  1864,  was  patented  by  the  United  States  to 
the  defendant.  In  1865  the  plaintiff  obtained  a  patent  for  his 
own    land,  where    he    used  the  water.     In    the    fall    of    1867, 

1  Union  M.  and  M.  Cq.  v.  Ferris,  2  Sawyer,  U.  S.  C.  C.  170.  See,  also,  Union 
M.  ami  M.  Co.  v.  Dangberg,  Ed.  460. 

i  oionM.  and  l/LCo.v.  Dangberg,  2  Sawyer,  TJ.  S.  O.  O.  451. 
;i7  Kevada,  249. 


§  208  VESTED    RIGHTS.  271 

defendants  constructed  a  wood  flume  on  defendant  Haines' 
land,  and  turned  into  it  all  the  water  of  the  stream,  thereby 
depriving  the  plaintiff  of  that  part  of  it  which  he  had  been 
using,  and  which  was  the  subject-matter  of  the  action.  The 
Court,  in  deciding  the  case,  maintained  that  a  diversion  of 
water  on  the  public  lands  confers  no  right  as  against  the 
Government ;  that  there  is  no  presumption  of  a  grant  as  against 
the  Government ;  that  a  patent  to  land  from  the  United  States 
passes  to  the  patentee  the  unincumbered  fee  of  the  soil,  with 
all  its  incidents  and  appurtenances,  among  which  is  the  right  to 
the  benefit  of  all  streams  of  water  which  naturally  flow  through 
it ;  that  the  Government  of  the  United  States  has  the  absolute 
and  perfect  title  to  and  is  the  unqualified  proprietor  of  all  public 
lands  to  which  the  Indian  title  has  been  extinguished ; *  and 
that,  as  running  water  is  an  incident  to  or  part  of  the  soil  over 
which  it  naturally  flows,  a  patent  carries  it,  if  naturally  flowing, 
and  also  carries  the  right  to  its  use,  and  the  same  right  to  recover 
for  a  diversion  of  it,  as  the  United  States  or  any  other  absolute 
owner  could  have. 

That  the  right  of  the  riparian  proprietor  does  not  depend  upon 
the  appropriation  of  the  water  by  him  to  any  special  purpose, 
but  that  it  is  a  right  incident  to  his  ownership  in  the  land  to 
have  the  water  flow  in  its  natural  course  and  condition,  subject 
only  to  those  changes  which  may  be  occasioned  by  such  use  by 
the  proprietors  above  him  as  the  law  permits  them  to  make  of 
it,  and  that  the  common  law  was  the  law  of  the  State  and  must 
prevail  in  all  cases  where  the  right  to  water  is  based  upon  the 
absolute  ownership  of  the  soil.  Lewis,  C.  J.,  delivering  the 
opinion  of  the  Court  upon  petition  for  rehearing,  said :  "  As  the 
appellant  here  claims  the  water  of  Daggett  Creek  as  an  incident 
to  the  land  patented  to  him  by  the  United  States,  and  as  it  is 
admitted  that  he  could  get  only  such  title  and  right  as  was 
vested  in  the  United  States  itself,  it  becomes  necessary  to  ascer- 
tain what  is  the  nature  of  the  rights  of  the  Federal  Government 

1  Van  Sickle  v.  Haines,  7  ISTev.  249;  Irvine  v.  Marshall,  20  How.  TJ.  S.  561; 
Jourdanu.  Barrett,  4  How.  U.  S.  185;  Bagnell  v.  Brodnill,  13  Pet.  450;  U.  S.  v. 
Hughes,  11  How.  U.  S.  568;  U.  S.  v.  Gratiot,  14  Pet.  526;  U.  S.  v.  Gear,  3  How. 
U.  S.  20;  Colton  v.  U.  S.  11  Id.  231;  1  Opinion  U.  S.  Attorney-General,  471;  1 
"Wood.  &  M.  82. 


272  VESTED    RIGHTS.  §   208 

to  the  public  land ;  and  we  propose  to  show  :  1st.  That  it  has 
the  absolute  and  perfect  title  ;  2d.  That  running  water  is  pri- 
marily an  incident  to  or  part  of  the  soil  over  which  it  naturally 
floAVs  ;  3d.  That  the  right  of  the  riparian  proprietor  does  not 
depend  upon  the  appropriation  of  the  water  by  him  to  any 
special  purpose,  but  that  it  is  a  right  incident  to  his  ownership 
in  the  land  to  have  the  water  flow  in  its  natural  course  and  con- 
dition, subject  only  to  those  changes  which  may  be  occasioned 
by  such  use  by  the  proprietors  above  him  as  the  law  permits 
them  to  make  of  it ;  4th.  That  the  government  patent  conveyed 
to  Haines  not  only  the  land,  but  the  stream  naturally  flowing 
through  it ;  5th.  That  the  common  law  is  the  law  of  this  State, 
and  must  prevail  in  all  cases  where  the  right  to  water  is  based 
upon  the  absolute  ownership  of  the  soil."  : 

The  Court  strongly  repudiated  the  idea  that  the  General  Gov- 
ernment had  in  any  way  indicated  it  to  be  its  policy  to  permit 
the  diversion  of  streams  from  their  natural  channel  on  the  pub- 
lic lands,  and  further  said:  "It  is  clearly  manifest,  from  the  pre- 
emption laws,  that  no  such  policy  has  ever  been  sanctioned  by 
it.  The  only  rights  which  can  be  acquired  to  the  public  agri- 
cultural lands  are  provided  for  by  the  pre-emption  laws,  and 
the  manner  of  obtaining  such  rights  is  specifically  set  out,  and 
no  right  to  or  interest  in  that  character  of  land  can  generally  be 
accpiiired  from  it,  except  by  means  of  and  by  pursuing  the  re- 
quirements of  those  laws.  As  it  has  specifically  provided  the 
course  to  be  pursued,  and  designated  the  rights  which  will  be 
recognized,  it  cannot  be  said  that  it  has  sanctioned  any  policy 
or  means  of  acquiring  such  right,  except  those  designated. 
But  the  right  to  divert  water  from  a  natural  water-coUrse,  it 
must  be  admitted,  creates  an  interest  in  the  land  from  which 
the  diversion  is  made,  in  favor  of  him  having  the  right.     (An- 

1  Vansickle  /'.  Haines,  7  Nevada,  260.  See,  also,  Corning  ?>.  Troy  Iron  and 
N.iil  Factory,  40  N.  Y.  206;  Mason  v.  Hill,  5  B.  &  Ad.  22;  Embrey  v.  Owens,  6 
333;  :i  Kent's  Com.  411;  10  Ohio,  297;  Gardner  v.  Newburgh,  2  John.  Ch. 
166;  Es  parte  Jennings,  6  Cow.  643;  Wadsworth  v.  Tillotson,  15  Conn.  372; 
Elliott  v.  Fitchburg  K.  Et.  Co.  LOCush.  193;  Johnson  v.  Jordan, 2  Met.  239;  Bage 
v.  Williams,  2  Dev.  &  B.  56;  8  Cal.  140;  Davis  v.  Fuller,  12  Vt.  190;  26  Wend. 
113:  Bealey  v.  Shaw,  6  East,  208;  Pugh  v.  Wheeler,  2  Dev.  &  B.  50;  Crocker  v. 
Bragg,  10  Wend.;  I  cited  States  v.  Ames,  1  "Woodb.  &  M.  70;  llailroad  v.  Schur- 
meir,  7  Wall.  U.  S.  '1T1;  Wileoxon  v.  McGheo,  12  111.  381;  Angell  on  Water- 
Courses,  Sec.  141;  2  Washb.  Real.  Br.  G8. 


§  208  VESTED    RIG1TTS.  273 

gcll  on  Water-Courses,  Sec.  814.)  Further  than  this,  the  right 
to  divert  carries  with  it  the  right  to  go  upon  the  land  through 
which  the  ditch  or  flume  is  conducted,  and  upon  which  the  dam, 
by  means  of  which  the  diversion  may  be  effected,  is  built,  to 
keep  them  in  repair. 

"  Suppose,  for  example,  that  the  dam  built  by  Vansickle  for 
diverting    this    water   from    the   creek  was  on  land  purchased 
by  Haines  from    the    United   States,    and    the    ditch    through 
which  it   was  conducted  ran  through  such  land :  now   if  Van- 
sickle  acquired  the  right  to   divert  the   water   as   against  the 
United  States,  he  has  the  same   right  as   against   Haines ;  and 
that  right  necessarily  gives  him   the  privilege,  at  any  and   all 
times,  when  he  may  choose,  to  go  upon  the  land   of  Haines  to 
keep  his  ditch  and  dam  in  repair — which,  in  itself,  would  be  an 
interest  in  Haines'  land.     (Angell  on  Water-Courses,  Sec.  141 ; 
2  Washburn  on  Real  Property,  68.)     And  thus,  contrary  to  all 
pre-emption  laws  and  the  manifest  policy  of  the  government  as 
embodied  in  them,  a  person  may  get  an  interest  in  public  land 
beyond  his  one  hundred  and  sixty  acres.     All  the  acts  of  Con- 
gress ever  adopted  up  to  1866,  clearly  show  that  it  has  never 
been  the  policy  of  the  United   States   to   sanction   anything  of 
the  kind ;  but,  on  the  contrary,  to  ignore  all   rights  to  or  inter- 
est in  its  land,  except  such  as  might  be   acquired   by  means  of 
its  own  pre-emption  laws,  or  other  similar  acts   expressly   con- 
ferring or  confirming  them  :  in  other  words,  to  keep  the  public 
land  in  such  condition  as  that  it  can  give  to  its  patentee  an  ab- 
solute and  perfect  title,  free  from  all    easements    and    incum- 
brances of  all  kinds  ;  no  purpose  of  the  General  Government  is 
more  perfectly  manifest,  from   all  the   legislation   of  Congress 
and  decisions  of  its  Courts,  than  this.     The  diversion  here  com- 
plained of  cannot,  then,  be  said  to  be  sanctioned  by  any  policy 
of  the  United  States.     The  Act  of  Congress  of   July,  1866,  if 
it  shows  anything,  shows  that  no  diversion  had  previously  been 
authorized;  for,  if  it  had,  whence  the  necessity  of  passing  that 
act,  which  appears  simply  to  have  been  adopted  to  protect  those 
who  at  that  time  were  diverting  water  from  its  natural  channel  ? 
Doubtless  all  patents  issued  or  titles  acquired  from  the  United 
States,  since  July,  1866,  are  obtained  subject  to  the  rights  exist- 
ing at  that  time  ;  but  this  is  a  different  case — for  if  the  appel- 
W.  C— 18. 


274  VESTED    RIGHTS.  §  208 

lant  has  any  right  to  the  water,  he  acquired  it  by  the  patent 
issued  to  him  two  years  before  that  time,  and  with  which,  there- 
fore, Congress  could  not  interfere.  But  Ave  do  not  understand 
it  to  be  claimed  that  the  act  does  directly  affect  this  case,  but 
that  it  is  only  referred  to  as  exhibiting  the  policy  of  the  General 
Government.  The  answer  is,  that  the  policy  began  with  that 
act,  was  never  in  any  way  sanctioned  or  suggested  prior  to  the 
time  of  its  passage,  and  therefore  has  nothing  to  do  with  this 
case."1 

The  Government,  therefore,  being  the  owner  of  the  soil  at 
the  time  of  the  diversion,  and,  as  such  owner,  having  an  abso- 
lute right  to  the  streams,  and  not  having  granted  away  any 
rights  of  water  to  the  plaintiff,  nor  authorized  him  to  make  the 
diversion  complained  of,  it  was  held  that  the  United  States  had 
a  right  of  action  against  him  for  making  the  diversion  :  that  he 
did  not  acquire  any  right  to  make  such  diversion  under  the  pre- 
emption laws,  and  that  the  right  of  action  passed  to  the  United 
States  patentee,  the  defendant,  who  was  alone  entitled  to  com- 
plain, and  not  the  plaintiff.2 

The  case  was  carefully  distinguished  from  that  large  class  of 
cases  where  it  had  been  held,  in  California  and  Nevada,  that 
priority  of  appropriation  gave  a  right  to  water,  as  between  ap- 
propriators  none  of  whom  held  the  absolute  title  to  the  soil. 
That  rule  was  in  nowise  disputed  in  Vansickle  v.  Haines.  The 
case  presented  the  different  phase  of  one  involving  the  question 
of  title  to  water  as  an  incident  to  the  soil,  where  the  owner  had 
the  same  right  that  the  Government  of  the  United  States  would 
have  had,  as  against  any  person  diverting  it  from  its 'land.  A 
United  States  patent  conveys  a  new  title,  and  the  time  during 
which  a  person  diverts  water  from  the  public  land  previous  to 
the  issuance  of  the  patent,  cannot  be  set  up  as  an  adverse  user 
gainst  the  patentee.3 

1  Vansickle  v.  Haines,  7  Nevada,  279. 

-Sec,  also,  Cook  v.  Foster,  2  Gilrnan,  652;  Wilcoxon  v.  McGhee,  12  111.  381; 
Colvin  v.  Burnett,  2 Hill,  620. 

:;  Vansickle  v.  Haines,  7  Nov.  249;  Irwin  v.  Phillips,  5  Cal.;  Crandall  v.  Wood, 
8Cal.  ill;  Lobdel]  v.  Simpson,  2  Nev.  274;  Ophir  S.  M.  Co.  v.  Carpenter,  4  Nev. 
531;  Covington  v,  Becker,  B  Nov.  281;  Proctor  v.  Jennings,  G  Nev.  83. 


§   209  VESTED    RIGHTS.  275 

§  209.  Recognition  of  doctrine  of  prior  appropriation — 
Reasonable  use. — In  Atchison  v.  Peterson,1  the  plaintiffs  filed 
a  bill  for  an  injunction  to  restrain  the  defendants  from  carrying 
on  certain  mining  operations  on  a  creek  in  Montana  Territory. 
The  bill  alleged  that  the  water  diverted  by  the  complain- 
ants from  the  stream  for  mining  purposes  was  deteriorated 
in  quality  and  value.  The  complainants  were  the  owners  of 
two  ditches  or  canals,  known  respectively  as  the  Helena  Water 
Ditch  and  the  Yaw  Yaw  Ditch,  by  which  the  creek  was  tapped 
and  the  water  diverted  and  conveyed  a  distance  of  about  eigh- 
teen miles,  to  certain  mining  districts,  and  there  sold  to  miners. 
The  complainants'  predecessors  in  interest  asserted  a  claim  to 
the  waters  of  the  creek  in  November,  1864,  and  during  that 
year  commenced  the  construction  of  the  ditches,  and  continued 
work  thereon  until  August,  1866.  The  work  was  then  sus- 
pended for  want  of  means  until  the  following  year,  when  it  was 
resumed,  and  in  1867  the  ditches  were  completed  and  put  into 
operation,  at  a  cost  of  $117,000. 

During  the  progress  of  this  work,  and  in  1865,  there  was 
some  mining  on  the  creek  above  the  point  of  junction  with  the 
ditches,  but  no  continued  mining  until  1867.  From  that  period 
the  defendants  worked  mining  ground  about  fifteen  miles  above 
the  point  of  junction,  washing  down  earth  and  "  tailings  "  into 
the  creek,  and  filling  the  water  with  mud,  sand,  and  sediment, 
impairing  its  value  at  that  point  for  further  mining.  It  appeared 
that  the  volume  of  water  in  the  creek,  which  at  the  point  where 
defendants  worked  their  mining  claims  was  only  about  200 
inches,  according  to  the  measurement  of  miners,  was  increased 
at  the  point  where  the  ditches  of  the  complainants  tapped  the 
creek,  by  intervening  tributary  streams  of  clear  water,  to  about 
1,500  inches.  Of  this  water  the  Helena  Ditch  diverted  about 
500  inches,  and  took  it  about  eighteen  miles  to  the  places  where 
it  was  sold  to  miners.  The  water  as  it  entered  the  ditch  was 
somewhat  muddied  and  affected  with  sand,  but  it  appeared  that 
the  injury  in  quality  from  this  cause  was  so  slight  as  not  in  any 
material  extent  to  impair  the  value  of  the  water  for  mining, 
nor  render  it  less  salable  to  the  miners  at  the  places  where  it  was 
carried. 

i  20  Wall.  TT.  S.  507,  affirming  S.  C.  1  Mont.  561. 


276  VESTED    RIGHTS.  §  209 

With  respect  to  the  water  diverted  by  the  Yaw  Yaw  Ditch ,  it 
was  shown  that  its  deterioration,  so  far  as  the  deterioration  ex- 
ceeded that  of  the  water  in  the  Helena  Ditch,  was  caused  by 
sand  and  sediment  brought  by  a  tributary  which  entered  the 
creek  below  the  head  of  the  Helena  Ditch. 

The  mining  claims  of  the  defendants  were  shown  to  be  worth 
from  815,000  to  $20,000  each,  and  it  appeared  that  the  defend- 
ants were  responsible  and  capable  of  responding  in  damages. 
The  injunction  was  denied  in  the  Territorial  Courts,  and  the 
Supreme  Court  of  the  United  States  affirmed  the  decree. 

In  view  of  the  foregoing  facts,  the  Supreme  Court  of  the 
United  States  considered  that  the  deterioration  in  quality  was 
very  slight,  and  did  not  render  the  water  to  any  appreciable 
extent  less  useful  or  salable  for  mining  purposes  at  the  localities 
to  which  it  was  conveyed,  and  that  no  additional  labor  was 
required  on  the  ditch  on  account  of  the  muddied  condition  of 
the  water.  A  sand-gate  at  the  head  of  the  ditch  was  necessary 
in  any  event,  whether  there  was  mining  above  the  stream  or 
not;  and  the  accumulation  of  sand  from  all  sources,  from  the 
hill-sides  as  well  as  from  the  mining  of  the  defendants,  only 
required  the  additional  labor  of  one  person  for  a  few  minutes 
each  day.  The  injury  thus  sustained  was  considered  hardly 
appreciable,  in  comparison  with  the  damage  which  would  result 
to  the  defendants  from  the  indefinite  suspension  of  work  on 
their  valuable  mining  claims.  The  remedy  by  injunction  was 
therefore  refused,  and  the  parties  left  to  their  actions  at  law. 

In  commenting  upon  the  doctrine  of  prior  appropriation,  and 
its  recognition  by  Congress,  Mr.  Justice  Field,  delivering  the 
opinion  of  the  Court,  said  : 

"  By  the  custom  which  has  obtained  among  miners  in  the 
Pacific  States  and  Territories,  where  mining  for  the  precious 
metals  is  had  on  the  public  lands  of  the  United  States,  the  first 
appropriator  of  mines,  whether  in  placers,  veins,  or  lodes,  or  of 
waters  in  the  streams,  on  such  lands  for  mining  purposes,  is 
held  to  have  a  bettor  right  than  others  to  work  the  mines  or 
use  the  waters.  The  first  appropriator  who  subjects  the  prop- 
erty i"  use,  or  takes  the  necessary  steps  for  that  purpose,  is 
regarded,  except  as  against,  the  Government,  as  the  source  of 
title  in  all  controversies  relating  to  the  property.     As  respects 


§  209  VESTED    RIGHTS.  277 

the  use  of  water  for  mining  purposes,  the  doctrines  of  the 
common  law,  declaratory  of  the  rights  of  riparian  owners,  were, 
at  an  early  day  after  the  discovery  of  gold,  found  to  be  inap- 
plicable, or  applicable  only  in  a  very  limited  extent,  to  the 
necessities  of  miners,  and  inadequate  to  their  protection.  By 
the  common  law,  the  riparian  owner,  on  a  stream  not  navigable, 
takes  the  land  to  the  center  of  the  stream,  and  such  owner  has 
the  right  to  the  use  of  the  water  flowing  over  the  land  as  an 
incident  to  his  estate.  And,  as  all  such  owners  on  the  same 
stream  have  an  equality  of  right  to  the  use  of  the  water  as  it 
naturally  flows  in  quality,  and  without  diminution  in  quantity, 
except  so  far  as  such  diminution  may  be  created  by  a  reasonable 
use  of  the  water  for  certain  domestic,  agricultural,  or  manufac- 
turing purposes,  there  could  not  be,  according  to  that  law,  any 
such  diversion  or  use  of  the  water  by  one  owner  as  would  work 
material  detriment  to  any  other  owner  below  him.  Nor  could 
the  water  by  one  owner  be  so  retarded  in  its  flow  as  to  be 
thrown  back  to  the  injury  of  another  owner  above  him.  'It  is 
wholly  immaterial,'  says  Mr.  Justice  Story,  in  Tyler  v.  Wilkin- 
son,1 '  whether  the  party  be  a  proprietor  above  or  below  in  the 
course  of  the  river :  the  right  being  common  to  all  the  proprie- 
tors on  the  river,  no  one  has  a  right  to  diminish  the  quantity 
which  will,  according  to  the  natural  current,  flow  to  the 
proprietor  below,  or  to  throw  it  back  upon  a  proprietor  above. 
This  is  a  necessary  result  of  the  perfect  equality  of  right  among 
all  the  proprietors  of  that  which  is  common  to  all.'  '  Every 
proprietor  of  lands  on  the  banks  of  a  river,'  says  Kent,  '  has 
naturally  an  equal  right  to  the  use  of  the  water  which  flows  in 
the  stream,  adjacent  to  his  lands,  as  it  was  wont  to  run  (currere 
solebat)  without  diminution  or  alteration.  No  proprietor  has  a 
right  to  use  the  water  to  the  prejudice  of  other  proprietors 
above  or  below  him,  unless  he  has  a  prior  right  to  divert 
it,  or  a  title  to  some  exclusive  enjoyment.  He  has  no  prop- 
erty in  the  water  itself,  but  a  simple  usufruct  while  it  passes 
along.  Aqua  currit  et  debet  currere  ut  currere  solebat. 
Though  he  may  use  the  water  while  it  runs  over  his  land,  as  an 
incident  to  the  land,  he  cannot  unreasonably  detain  it  or  give  it 

1 4  Mason,  379. 


278  VESTED    RIGHTS.  §  209 

another  direction,  and  lie  must  return  it  to  its  ordinary  channel 
when  it  leaves  his  estate.  Without  the  consent  of  the  adjoining 
proprietors,  he  cannot  divert  or  diminish  the  quantity  of  the 
water  which  would  otherwise  descend  to  the  proprietors  below, 
nor  throw  the  water  back  upon  the  proprietors  above,  without 
a  grant  or  an  uninterrupted  enjoyment  of  twenty  years,  which 
is  evidence  of  it.  This  is  the  clear  and  settled  doctrine  on  the 
subject,  and  all  the  difficulty  which  arises  consists  in  the  appli- 
cation.' 1 

"  This  equality  of  right  among  all  the  proprietors  on  the  same 
stream  would  have  been  incompatible  with  any  extended  diver- 
sion of  the  water  by  one  proprietor,  and  its  conveyance  for 
mining  purposes  to  points  from  which  it  could  not  be  restored 
to  the  stream.  But  the  Government  being  the  sole  proprietor 
of  all  the  public  lands,  whether  bordering  on  streams  or  other- 
wise, there  was  no  occasion  for  the  application  of  the  common- 
law  doctrine  of  riparian  proprietorship  with  respect  to  the  waters 
of  those  streams. 

"  The  Government,  by  its  silent  acquiescence,  assented  to  the 
general  occupation  of  the  public  lands  for  mining ;  and,  to  en- 
courage their  free  and  unlimited  use  for  that  purpose,  reserved 
such  lands  as  were  mineral  from  sale  and  the  acquisition  of  title 
by  settlement.  And  he  who  first  connects  his  own  labor  with 
property  thus  situated  and  open  to  general  exploration,  does,  in 
natural  justice,  acquire  a  better  right  to  its  use  and  enjoyment 
than  others  who  have  not  given  such  labor.  So  the  miners  on 
the  public  lands  throughout  the  Pacific  States  and  Territories, 
by  their  customs,  usages,  and  regulations,  everywhere  recognize 
the  inherent  justice  of  this  principle ;  and  the  principle  itself 
was  at  an  early  period  recognized  by  legislation,  and  enforced 
by  the  Courts  in  those  States  and  Territories.  In  Irwin  v. 
Phillips,2  a  case  decided  by  the  Supreme  Court  of  California,  in 
January,  1855,  this  subject  was  considered.  After  stating  that 
a  system  of  rules  had  been  permitted  to  grow  up  with  respect  to 
mining  on  the  public  lands  by  voluntary  action  and  assent  of  the 
population,  whose  free  and  unrestrained  occupation  of  the  min- 
cr.il  region  had  been  tacitly  assented  to  by  the  Federal  Govern- 

1 .;  Kent's  Commentaries,  *439.  25  Cal.  140. 


§  209  VESTED   RIGIITS.  279 

ment,  and  heartily  encouraged  by  the  expressed  legislative  policy 
of  the  State,  the  Court  said :  '  If  there  are,  as  must  be  admit- 
ted, many  things  connected  with  this  system  which  are  crude 
and  undigested,  and  subject  to  fluctuation  and  dispute,  there  are 
still  some  which  a  universal  sense  of  necessity  and  propriety 
have  so  firmly  fixed  as  that  they  have  come  to  be  looked  upon 
as  having  the  force  and  effect  of  res  adjudicata.  Among  these 
the  most  important  are  the  rights  of  miners  to  be  protected  in 
their  selected  localities,  and  the  rights  of  those  who,  by  prior 
appropriation,  have  taken  the  waters  from  their  natural  beds, 
and  by  costly  artificial  works  have  conducted  them  for  miles 
over  mountains  and  ravines  to  supply  the  necessities  of  gold 
diggers,  and  without  which  the  most  important  interests  of  the 
mineral  region  would  remain  without  development.  So  fully 
recognized  have  become  these  rights,  that  without  any  specific 
legislation  conferring  or  confirming  them,  they  are  alluded  to 
and  spoken  of  in  various  acts  of  the  legislature  in  the  same 
manner  as  if  they  were  rights  which  had  been  vested  by  the 
most  distinct  expression  of  the  will  of  the  law-makers.' 

"  This  doctrine  of  right  by  prior  appropriation  was  recognized 
by  the  legislation  of  Congress,  in  18G6."  1 

The  limitation  of  the  doctrine  of  prior  appropriation  and  the 
restrictions  as  to  reasonable  use,  were  touched  upon  as  follows : 

"The  right  to  water  by  prior  appropriation,  thus  recognized 
and  established  as  the  law  of  miners  on  the  mineral  lands  of  the 
public  domain,  is  limited  in  every  case,  in  quantity  and  quality, 
by  the  uses  for  which  the  appropriation  is  made.  A  different 
use  of  the  water  subsequently  does  not  affect  the  right;  that  is 
subject  to  the  same  limitations,  whatever  the  use,  The  appro- 
priation does  not  confer  such  an  absolute  right  to  the  body  of 
the  water  diverted,  that  the  owner  can  allow  it,  after  its  diver- 
sion, to  run  to  waste,  and  prevent  others  from  using  it  for  mining 
or  other  legitimate  purposes ;  nor  does  it  confer  such  a  right 
that  he  can  insist  upon  the  flow  of  the  water  without  deteriora- 
tion in  quality,  where  such  deterioration  does  not  defeat  nor  im- 
pair the  uses  to  which  the  water  is  applied. 

"  Such  was  the  purport  of  the  ruling  of  the  Supreme  Court 

i  Atchison  v.  Peterson,  20  Wall.  U.  S.  510. 


280  VESTED    RIGHTS.  §  209 

of  California,  in  Butte  Canal  and  Ditch  Company  ?'.  Vaughn,1 
where  it  was  held  that  the  first  appropriator  had  only  the  right 
to  insist  that  the  water  should  be  subject  to  his  use  and  enjoy- 
ment to  the  extent  of  his  original  appropriation,  and  that  its 
quality  should  not  be  impaired  so  as  to  defeat  the  purpose  of 
that  appropriation.  To  this  extent,  said  the  Court,  his  rights  go, 
and  no  further ;  and  that  in  subordination  to  them,  subsequent 
appropriators  may  use  the  channel  and  waters  of  the  stream, 
and  mingle  with  its  waters  other  waters,  and  divert  them  as 
often  as  they  choose ;  that  whilst  enjoying  his  original  rights, 
the  first  appropriator  had  no  cause  of  complaint.  In  the  sub- 
sequent case  of  Ortman  v.  Dixon,2  the  same  Court  held,  to  the 
same  purport,  that  the  measure  of  the  right  of  the  first  appro- 
priator of  the  water  as  to  extent  follows  the  nature  of  the  ap- 
propriation or  the  uses  for  which  it  is  taken. 

"  What  diminution  of  quantity  or  deterioration  in  quality 
will  constitute  an  invasion  of  the  rights  of  the  first  appropriator 
will  depend  upon  the  special  circumstances  of  each  case,  con- 
sidered with  reference  to  the  uses  to  which  the  water  is  applied. 
A  slight  deterioration  in  quality  might  render  the  water  unfit 
for  drink  or  domestic  purposes,  whilst  it  woukl  not  sensibly  im- 
pair its  value  for  mining  or  irrigation.  In  all  controversies, 
therefore,  between  him  and  parties  subsequently  claiming  the 
water,  the  question  for  determination  is  necessarily  whether  his 
use  and  enjoyment  of  the  water  to  the  extent  of  his  original 
appropriation  have  been  impaired  by  the  acts  of  the  defendant.3 

But  whether,  upon  a  petition  or  bill  asserting  that  his  prior 
rights  have  been  thus  invaded,  a  Court  of  Equity  will  interfere 
to  restrain  the  acts  of  the  party  complained  of,  will  depend 
upon  the  character  and  extent  of  the  injury  alleged,  whether 
it  be  irremediable  in  its  nature,  whether  an  action  at  law  would 
afford  adequate  remedy,  whether  the  parties  are  able  to  respond 
for  the  damages  resulting  from  the  injury,  and  other  considera- 
tions which  ordinarily  govern  a  Court  of  Equity  in  the  exer- 
cise of  its  preventive  process  of  injunction."4 

i  ti  Oal.  L43. 

a  13  Cal.  ■■■•.    See,  also,  Lobdell  v.  Simpson,  2  Nov.  274. 

■■  Bee,  i"  Hi''  Bame  effect,  Hill  v.  Smith,  27  Cal.  483;  Yale's  Mining  Claims,  194. 

*  A.tchlflon  v.  Peterson,  20  Wall.  U.  S.  514. 


§  210  VESTED    RIGHTS.  281 

§  210.  Effect  of  the  statute  upon  prior  appropriation 
without  Government  title. — This  phase  of  the  subject  lias 
been  considered  in  a  late  case  in  the  Supreme  Court  of  the 
United  States.  A  review  of  that  case  will  constitute  the  most 
authoritative  exposition  of  the  law  of  the  subject.  The  ques- 
tion on  the  merits  in  the  case  was,  whether  a  right  to  running 
waters  on  the  public  land  of  the  United  States,  for  the  purposes  of 
irrigation,  can  be  acquired  by  prior  appropriation,  as  against  par- 
ties not  having  the  title  of  the  Government.  The  Court  said : 
"  Neither  party  has  any  title  from  the  United  States ;  no  ques- 
tion as  to  the  rights  of  the*  riparian  proprietors  can,  therefore, 
arise.  It  will  be  time  enough  to  consider  those  rights  when 
either  of  the  parties  has  obtained  the  patent  of  the  Government. 
At  present,  both  parties  stand  upon  the  same  footing :  neither 
can  allege  that  the  other  is  a  trespasser  against  the  Government 
without  at  the  same  time  invalidating  his  own  claim. 

"  In  the  late  case  of  Atchison  v.  Peterson,1  we  had  occasion  to 
consider  the  respective  rights  of  miners  to  running  waters  on 
mineral  lands  of  the  public  domain  ;  and  we  there  held,  that  by 
the  custom  which  had  obtained  amonsj  miners  in  the  Pacific 
States  and  Territories,  the  party  who  first  subjected  the  water 
to  use,  or  took  the  necessary  steps  for  that  purpose,  was  re- 
garded, except  as  against  the  Government,  as  the  source  of  title 
in  all  controversies  respecting  it ;  that  the  doctrines  of  the  com- 
mon law  declaratory  of  the  rights  of  riparian  proprietors  were 
inapplicable,  or  applicable  only  to  a  limited  extent,  to  the  neces- 
sities of  miners,  and  were  inadequate  to  their  protection ;  that 
the  equality  of  right  recognized  by  that  law  among  all  the  pro- 
prietors upon  the  same  stream,  would  have  been  incomj)atible 
with  any  extended  diversion  of  the  water  by  one  proprietor, 
and  its  conveyance  for  mining  purposes  to  points  from  which  it 
could  not  be  restored  to  the  stream ;  that  the  Government  by  its 
silent  acquiescence  had  assented  to,  and  encouraged,  the  occu- 
pation of  the  public  lands  for  mining,  and  that  he  who  first  con- 
nected his  labor  with  property  thus  situated  and  open  to  gen- 
eral exploration,  did  in  natural  justice  acquire  a  better  right  to 
its  use  and  enjoyment  than  others  who  had  not  given   such  la- 

1 20  Wall.  U.  S.  507. 


282  VESTED    RIGHTS.  §  210 

bor ;  that  the  miners  on  the  public  lands  throughout  the  Pacific 
States  and  Territories,  by  their  customs,  usages,  and  regulations, 
had  recognized  the  inherent  justice  of  this  principle,  and  the 
principle  itself  was,  at  an  early  period*  recognized  by  legisla- 
tion, and  enforced  by  the  Courts  in  those  States  and  Territories, 
and  was  finally  approved  by  the  legislation  of  Congress  in  1866. 
The  views  there  expressed,  and  the  rulings  made,  are  equally 
applicable  to  the  use  of  water  on  the  public  lands  for  purposes 
of  irrigation.  No  distinction  is  made  in  those  States  and  Ter- 
ritories, by  the  customs  of  miners  or  settlers,  or  by  the  Courts, 
in  the  rights  of  the  first  appropriator  from  the  use  made  of  the 
water,  if  the  use  be  a  beneficial  one." 

"  In  the  case  of  Tartar  v.  The  Spring  Creek  Water  and  Min- 
ing Company,  decided  in  1855,  the  Supreme  Court  of  Califor- 
nia said :  '  The  current  of  decisions  of  this  Court  goes  to  estab- 
lish that  the  policy  of  this  State,  as  derived  from  her  legisla- 
tion, is  to  permit  settlers  in  all  capacities  to  occupy  the  public 
lands,  and  by  such  occupation  to  acquire  the  right  of  undis- 
turbed enjoyment  against  all  the  world  but  the  true  owner.  In 
evidence  of  this,  acts  have  been  passed  to  protect  the  possession 
of  agricultural  lands  acquired  by  mere  occupancy ;  to  license 
miners ;  to  provide  for  the  recovery  of  mining  claims ;  recog- 
nizing canals  and  ditches  which  were  known  to  divert  the  water 
of  streams  from  their  natural  channels  for  mining  purposes ; 
and  others  of  like  character.  This  policy  has  been  extended 
equally  to  all  pursuits,  and  no  partiality  for  one  over  another 
has  been  evinced,  except  in  the  single  case  where  the  rights  of 
the  agriculturist  are  made  to  yield  to  those  of  the  miner  where 
gold  is  discovered  in  his  land.  The  policy  of  the  exception  is 
obvious.  Without  it  the  entire  gold  region  might  have  been 
inclosed  in  large  tracts,  under  the  pretense  of  agriculture  and 
giazing,  and  eventually  what  wpuld  have  sufficed  as  a  rich 
bounty  to  many  thousands  would  be  reduced  to  the  proprietor- 
ship of  ;i  few.  Aside  from  this,  the  legislation  and  decisions 
have  been  uniform  in  awarding  the  right  of  peaceable  enjoy- 
ment to  the  first  occupant,  either  of  the  land  or  of  anything  in- 
cident to  the  land.' 2 

i  5  Cal.  397. 


§  210  VESTED    RIGHTS.  283 

"  Ever  since  that  decision,  it  has  been  held,  generally  through- 
out the  Pacific  States  and  Territories,  that  the  right  to  water  by 
prior  appropriation  for  any  beneficial  purpose  is  entitled  to  pro- 
tection. Water  is  diverted  to  propel  machinery  in  flour-mills 
and  saw-mills,  and  to  irrigate  land  for  cultivation,  as  well  as  to 
enable  miners  to  work  their  mining  claims ;  and  in  all  such 
cases  the  right  of  the  first  appropriator,  exercised  within  reason- 
able limits,  is  respected  and  enforced.  We  say  within  reasona- 
ble limits,  for  this  right  to  water,  like  the  right  by  prior  occu- 
pancy to  mining  ground  or  agricultural  land,  is  not  unrestricted. 
It  must  be  exercised  with  reference  to  the  general  condition  of 
the  country  and  the  necessities  of  the  people,  and  not  so  as  to 
deprive  a  whole  neighborhood  or  community  of  its  use,  and  vest 
an  absolute  monopoly  in  a  single  individual.  The  Act  of  Con- 
gress of  1866  recognizes  the  right  to  water  by  prior  appropria- 
tion for  agricultural  and  manufacturing  purposes,  as  well  as 
for  mining."1 

"It  is  very  evident  that  Congress  intended,  although  the 
language  used  is  not  happy,  to  recognize  as  valid  the  custom- 
ary law  with  respect  to  the  use  of  water,  which  had  grown  up 
among  the  occupants  of  the  public  land  under  the  peculiar  ne- 
cessities of  their  condition ;  and  that  law  may  be  shown  by 
evidence  of  the  local  customs,  or  by  the  legislation  of  the  State 
or  Territory,  or  the  decision  of  the  Courts.  The  union  of  the 
three  conditions  in  any  particular  case  is  not  essential  to  the 
perfection  of  the  right  by  priority ;  and  in  case  of  conflict  be- 
tween a  local  custom  and  a  statutory  I'egulation,  the  latter,  as 
of  superior  authority,  must  necessarily  control."  2 

Several  decisions  of  the  Supreme  Court  of  Montana  have 
been  cited  to  us,  recognizing  the  right  by  prior  appropriation  to 
water  for  purposes  of  mining  on  the  public  lands  of  the  United 
States ;  and  there  is  no  solid  reason  for  upholding  the  right 
when  the  water  is  thus  used,  which  does  not  apply  with  the 
same  force  when  the  water  is  sought  on  those  lands  for  any 
other   equally  beneficial    purpose.     In    Thorp    v.    Freed,3   the 

1  Basey  v.  Gallagher,  20  Wall.  U.  S.  681;  S.  C.  1  Montana,  457;  Woolman  v. 
Garringer,  1  Montana,  535. 

2  Ibid.  683;  Ibid. 

s  1  Montana,  652,  665. 


284  VESTED   EIGHTS.  §  210 

subject  was  very  ably  discussed  by  two  of  the  justices  of 
that  Court,  who  differed  in  opinion  upon  the  question  in  that 
case,  where  both  parties  had  acquired  the  title  of  the  Govern- 
ment. The  disagreement  would  seem  to  have  arisen  in  the  ap- 
plication of  the  doctrine  to  a  case  where  title  had  passed  from 
the  Government,  and  not  in  its  application  to  a  case  where 
neither  party  had  acquired  that  title.  In  the  course  of  his  opin- 
ion, Mr.  Justice  Knowles  stated  that  ever  since  the  settlement 
of  the  Territory  it  had  been  the  custom  of  those  who  had  set- 
tled themselves  upon  the  public  domain  and  devoted  any  part 
thereof  to  the  purposes  of  agriculture,  to  dig  ditches  and  turn 
out  the  water  of  some  stream  to  irrigate  the  same  ;  that  this 
right  had  been  generally  recognized  by  the  people  of  the  Ter- 
ritory, and  had  been  universally  conceded  as  a  necessity  of  agri- 
cultural pursuits.  "  So  universal,"  added  the  justice,  "  has 
been  this  usage,  that  I  do  not  suppose  there  has  been  a  parcel  of 
land  to  the  extent  of  one  acre,  cultivated  within  the  bounds  of 
this  Territory,  that  has  not  been  irrigated  by  water  diverted 
from  some  mining  stream. 

"  We  are  satisfied  that  the  right  claimed  by  the  plaintiffs  is 
one  which,  under  the  customs,  laws,  and  decisions  of  the  Courts 
of  the  Territory,  and  the  act  of  Congress,  should  be  recognized 
and  protected."  1 

In  the  case  of  Basey  v.  Gallagher,  it  was,  as  we  have  seen, 
decided,  that  a  right  to  running  waters  on  the  public  lands  of 
the  United  States,  for  purposes  of  irrigation,  could  be  acquired 
by  prior  appropriation,  as  against  parties  not  having  the  title  of 
the  ( rovernment.2 

This  doctrine  was  followed  in  Barnes  v.  Sabron,  10  Nevada, 
230,  which  was  an  action  to  recover  damages  for  the  diversion 
of  water.  It  was  there  held  that  the  first  appropriator  of  the 
water  of  a  stream  running  through  the  public  lands  has  the 
right  to  insist  that  the  water  flowing  therein  shall,  during  the 
irrigating  season,  be  subject  to  his  reasonable  use  and  enjoyment, 
Id  tin-  lull  extent  of  his  original  appropriation  and  beneficial  use. 
Bui  bis  rights  go  no  further;  for  in  subordination  to  such  rights 

1  Basey  v.  Gallagher,  20  Wall.  685;  S.  C.  1  Montana,  457;  Woolman  v.  Garrin- 
ger,  i  Montana 
»20  Wall.  U.  S.  s.  c  i  Montana. 


§    210  VESTED    RIGHTS.  285 

subsequent  appropriators  may  take  the  balance  of  the  water 
remaining  in  the  stream.  The  first  appropriator  is  only  entitled 
to  as  much  water  as  is  necessary  to  irrigate  his  land,  and  is 
bound  to  make  a  reasonable  use  of  it,  and  what  is  a  reasonable 
use  depends  upon  the  circumstances  of  each  case.  The  Court 
said  :  "  The  doctrine  that  the  first  appropriator  has  the  superior 
right,  '  where  the  right  to  the  use  of  running  water  is  based 
upon  appropriation,  and  not  upon  ownership  in  the  soil,'  has 
been  recognized  and  acknowledged  by  the  decisions  of  this 
Court  in  Lobdell  v.  Simpson,  2  Nev.  274,  and  the  Ophir  S. 
M.  Co.  v.  Carpenter  et  al.,  4  Nev.  534. 

"  The  facts  of  this  case  do  not  call  in  question  the  correctness 
of  the  decision  in  Vansickle  v.  Haines,  7  Nev.  240,  where  the 
title  to  the  land  had  been  obtained  from  the  Government  prior 
to  the  acts  of  Congress  herein  referred  to. 

"  It  logically  follows,  from  the  legal  principles  we  have 
announced,  that  the  plaintiff,  as  the  first  appropriator  of  the 
waters  of  Currant  Creek,  has  the  right  to  insist  that  the  water 
flowing  therein  shall,  during  the  irrigating  season,  be  subject  to 
his  reasonable  use  and  enjoyment  to  the  full  extent  of  his  original 
appropriation  and  beneficial  use.  To  this  extent  his  rights  go, 
but  no  further ;  for,  in  subordination  to  such  rights,  the  defend- 
ants, in  the  order  and  to  the  extent  of  their  original  appropria- 
tion and  use,  had  the  unquestionable  right  to  appropriate  the 
remainder  of  the  water  running  in  said  stream.  (The  Butte 
Canal  and  Ditch  Co.  t.  Vaughn,  11  Cal.  143;  The  Nevada 
Water  Co.  v.  Powell  et  al.,  34  Cal.  100.) 

"  In  1870,  Congress  amended  the  Act  of  1866,  and  provided : 
'  That  none  of  the  rights  conferred  by  sections  five,  eight,  and 
nine  of  the  act  to  which  this  act  is  amendatory  shall  be  abro- 
gated by  this  act,  and  the  same  arc  hereby  extended  to  all  public 
lands  affected  by  this  act;  and  all  patents  granted,  or  pre-emption 
or  homesteads  allowed,  shall  be  subject  to  any  vested  and  accrued 
water  rights,  or  rio-hts  to  ditches  and  reservoirs,  used  in  connec- 
tion  with  such  water  rights,  as  may  have  been  acquired  under 
or  recognized  by  the  ninth  section  of  the  act  of  which  this  act 
is  amendatory.'  (16  U.  S.  Stats.  218,  Sec.  17.)  The  certificate 
of  plaintiff  from  the  State  and  the  patent  of  Sabron  must,  under 
the  provisions  of  this  law,  be  held  subject  to  such  vested  and 


286  VESTED    RIGHTS.  §  211 

accrued  water  rights  as  were  acquired  by  the  respective  parties 
under  the  ninth  section  of  the  Act  of  1866."  * 

"  If  plaintiff  did  not  require  the  full  amount  of  his  appropria- 
tion, he  could  not  hold  the  defendants  responsible  in  damages  for 
not  turning  it  down  to  him ;  he  was  only  entitled  to  as  much 
water — within  his  original  appropriation — as  was  necessary  to 
irrigate  his  land,  and  was  bound,  under  the  law,  to  make  a  rea- 
sonable use  of  it.  In  a  dry  and  arid  country,  like  Nevada, 
where  the  rains  are  insufficient  to  moisten  the  earth,  and  irriga- 
tion becomes  necessary  for  the  successful  raising  of  crops,  the 
rights  of  prior  appropriators  must  be  confined  to  a  reasonable 
and  necessary  use.  The  agricultural  resources  of  the  State 
cannot  be  developed,  and  our  valley  lands  cannot  be  cultivated 
without  the  use  of  water  from  the  streams  to  cause  the  earth 
to  bring  forth  its  precious  fruits.  No  person  can,  by  virtue  of 
a  prior  appropriation,  claim  or  hold  any  more  water  than  is  nec- 
essary for  the  purpose  of  the  appropriation.  Reason  is  the  life 
of  the  law,  and  it  would  be  unreasonable  and  unjust  for  any 
person  to  appropriate  all  the  waters  of  a  creek  when  it  was  not 
necessary  to  use  the  same  for  the  purposes  of  his  appropriation. 
The  law,  which  recognizes  the  vested  rights  of  prior  appropri- 
ators, has  always  confined  such  rights  within  reasonable  limits. 
'  We  say  within  reasonable  limits,'  with  the  Court  in  Basey  v. 
Gallagher,  '  for  this  right  to  water,  like  the  right  by  prior  occu- 
pancy to  mining  ground,  *  *  *  is  not  unrestricted.  It 
must  be  exercised  with  reference  to  the  general  condition  of  the 
country  and  the  necessities  of  the  people,  and  not  so  as  to  de- 
prive a  whole  neighborhood  or  community  of  its  use,  and  vest 
an  absolute  monopoly  in  a  single  individual.'  What  is  a  reason- 
able use  depends  upon  the  peculiar  circumstances  of  each  par- 
ticular case."2 

§  211.   Construction  of  flumes  over  public  lands. — In  a 

case  in  Nevada,  a  plaintiff  in  constructing  a  flume  found  it  nec- 
<  -  ary  to  carry  it  over  certain  public  land  in  the  possession  of 
the  defendant.  lie  proceeded  under  the  State  law  to  condemn 
the  right  of   way,  and   had  appraisers  appointed  who  valued  it. 

1  Barnes  v.  Sabron  10  Nevada,  233. 

-  Ibid.  243;  Basey  i>.  Gallagher,  20  WalL  G85;  1  Montana,  457. 


§  212  VESTED   RIGHTS.  287 

He  tendered  the  sum  to  the  defendant,  who  refused  to  accept. 
After  such  tender  he  attempted  to  carry  forward  his  work,  but 
was  prevented  by  defendant.  The  plaintiff  therefore  prayed 
for  an  injunction  restraining  the  defendant  from  further  inter- 
fering with  the  work.  The  inferior  Court,  after  hearing  the 
testimony,  ordered  a  preliminary  injunction  to  issue,  and  de- 
fendant took  an  appeal  from  the  order  to  the  Supreme  Court  of 
the  State.  In  commenting  upon  Sec.  9  of  the  Act  of  1866, 
(Rev.  Stats.  2339)  the  Court  said :  "  In  its  adoption  there  appear 
to  have  been  three  distinct  objects  in  view  :  1st.  The  confirmation 
of  all  existing  water  rights  ;  2d.  To  grant  the  right  of  way 
over  the  public  land  to  persons  desiring  to  construct  flumes  or 
canals  for  mining  or  manufacturing  purposes ;  and  3d.  To 
authorize  the  recovery  of  damage  by  settlers  on  such  land 
against  persons  constructing  such  ditches  or  canals,  for  injuries 
occasioned  thereby.  That  this  section  grants  the  right  of  way 
over  the  public  land  to  all  who  may  desire  to  construct  ditches 
or  canals  for  mining  or  agricultural  purposes,  is  about  as  clear 
and  certain  as  the  objects  and  purposes  of  the  acts  of  Congress 
usually  are." 

Under  the  act,  it  was  considered  that  nothing  is  necessary  to 
be  shown  except  that  the  construction  of  a  canal  or  ditch  is  de- 
sired for  some  mining  or  agricultural  purpose,  and  that  the  land 
over  which  it  is  to  be  constructed  is  public.  The  land  being 
public,  it  was  held  that  Congress  had  a  perfect  right  to  grant 
the  right  of  way  over  it,  for  the  purpose  of  constructing  flumes 
and  for  other  purposes,  and  the  injunction  was  allowed  to  stand.1 

§  212.   Rights  of  ditch-owners  on  public  lands. — In  a 

California  case  the  defendant,  in  1853  and  1854,  had  constructed 
a  ditch  to  convey  water  for  mining  purposes  in  the  gold  regions 
of  California.  The  ditch  was  about  thirty  miles  in  length,  and 
of  a  capacity  to  carry  14,000  inches  of  water,  and  was  excavated 
to  carry  water  for  sale  to  miners  and  others,  and  passed  over 
public  lands  of  the  United  States,  which  were  surveyed  prior  to 
1865.  The  plaintiff  derived  title  to  a  portion  of  the  land  through 
which  the  ditch  passed,  by  a  patent  from  the  United  States, 
dated  November  1st,  1867,  having  filed  his  declaratory  statement 

i  Hobart  v.  Ford,  6  Nev.  77. 


288  VESTED    RIGHTS.  §  212 

as  a  pre-emptor  on  August  18th,  1866.  He  derived  title  to 
another  portion  of  the  land  by  deed  from  a  United  States 
patentee,  the  patent  being  dated  December  1st,  1868 ;  and  to 
still  another  portion  by  deed  from  the  Central  Pacific  Railroad 
Company,  who  received  the  land  by  grant  from  the  United 
States  on  the  27th  of  June,  1867,  under  the  Acts  of  Congress 
of  1862  and  1864,  granting  lands  in  aid  of  a  railroad  and  tele- 
graph line.  The  lands  were  cultivated  by  the  plaintiff,  and  he 
commenced  an  action  on  the  19th  of  October,  1871,  to  abate 
the  ditch  as  a  nuisance. 

The  defendant,  therefore,  showed  that  prior  to  the  Act  of 
Congress  of  July  26th,  1866,  it  had  acquired  a  right  to  the  use 
of  the  water  which  was  "  recognized  and  acknowledged  by  the 
local  customs,  laws,  and  decisions  of  Courts."  "  That  act,"  said 
the  Court,  "  operated  a  grant  to  it  of  the  right  of  way,  and  of 
the  ditch  through  which  the  water  was  running  at  the  date  of 
the  passage  of  the  act.  The  subsequent  grantees  of  the  United 
States  of  tracts  through  which  the  ditch  ran,  took  subject  to 
defendant's  easement."  The  patents  of  the  plaintiff,  and  his 
grantors,  were  issued  after  the  date  of  the  act.  But  it  was 
claimed  that  the  railroad  company,  one  of  plaintiff's  grantors, 
had  a  perfect  equity  at  and  before  the  date  of  the  Act  of  July 
26th,  1866,  because  it  had  completed  "  forty  consecutive  miles  " 
of  the  railroad,  and  the  land  was  within  that  division.  The 
Act  of  1862  (Section  4)  provides,  "  that  (on  completion  of  forty 
miles,  etc.,)  the  President  shall  appoint  three  commissioners  to 
examine  the  same,  and  report  to  him  in  relation  thereto;  that 
if  it  shall  appear  to  him  that  forty  consecutive  miles  of  said 
railroad  and  telegraph  line  have  been  completed  and  equipped 
in  all  respects  as  required  by  this  act,  then,  upon  certificate  of 
said  commissioners  to  that  effect,  patents  shall  issue  ;  and  patents 
shall,  in  like  manner,  issue  as  each  forty  miles  of  said  railroad 
and  telegraph  line  an;  completed,  upon  certificate  of  said  com- 
missioners." The  Court  said:  "  The  law  places  in  the  President 
or  board  of  commissioners,  or  both,  the  power  of  determining 
whether  (he  railroad  company  has  performed  the  conditions 
pre-requisite  to  the  issuing  of  the  patents.  It  is  manifest  that, 
until  the  commissioners  made  their  certificate,  the  company  had 
qo  vested  equity  which  ran  be  recognized  by  the  State  Courts. 


§  213  VESTED    RIGHTS.  289 

There  is  no  finding  that  such  certificate  was  made  prior  to  the 
passage  of  the  Act  of  July  26th,  1866." 

What  the  effect  of  such  a  finding  would  have  been  was  not 
decided.1 

§  213.  The  Sutro  Tunnel  Act — Provisions  not  to  affect 
existing  rights. — Section  2344  of  the  Revised  Statutes  reads  : 
"  Nothing  contained  in  this  chapter  shall  be  construed  to  impair, 
in  any  way,  rights  or  interests  in  mining  property  acquired 
under  existing  laws  ;  nor  to  affect  the  provisions  of  the  act 
entitled  'An  Act  granting  to  A.  Sutro  the  right  of  way  and 
other  privileges  to  aid  in  the  construction  of  a  draining  and 
exploring  tunnel  to  the  Comstock  Lode,  in  the  State  of  Nevada,' 
approved  July  25th,  1866."  2 

1  Broder  v.  Natoina  Water  and  Mining  Company,  50  Cal.  021.  See,  generally, 
as  to  water  rights,  doctrine  of  prior  appropriation:  Blancliard  &  Weeks'  Leading 
Cases  on  Mines,  Minerals,  and  Mining  Water  •Rights,  726-757,  and  numerous 
cases  there  cited:  Woolman  v.  Garringer,  1  Montana,  535;  Columbia  M.  Co.  v. 
Holter,  Ibid.  296.  Diversion  of  Avater:  Harris  v.  Shoutz,  Ibid.  212;  Right  of  way 
for  ditches,  Noteware  v.  Sterns,  Ibid.  311. 

a  Rev.  Stats.  2344.  See  Sec.  2340,  Ibid.  See  Sec.  17  of  the  Act  of  1870,  16 
U.  S.  Stats.  218.  Sec.  8  of  the  Act  of  I860,  14  U.  S.  Stats.  253,  read:  "Sec.  8. 
That  the  right  of  way  for  the  construction  of  highways  over  public  lands,  not 
reserved  for  public  uses,  is  hereby  granted."  The  last  clause  of  Sec.  16  of  the 
Act  of  1872,  17  U.  S.  Stats.  96,  read:  "Provided,  That  nothing  contained  in  this 
act  shall  be  construed  to  impair,  in  any  way,  rights  or  interests  in  mining 
property  acquired  under  existing  laws." 

Following  is  the  text  of  the  so-called  Sutro  Tunnel  Act,  approved  July  25th, 
1866  (14  U.  S.  Stats.  242): 

"  An  Act  granting  to  A.  Sutro  the  right  of  way,  and  granting  other  privileges 
to  aid  in  the  construction  of  a  draining  and  exploring  tunnel  to  the  Comstock 
Lode,  in  the  State  of  Nevada.     [Approved  July  25th,  1866.] 

"Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America,  in  Congress  assembled,  That,  for  the  purpose  of  the  construction  of  a 
deep  draining  and  exploring  tunnel  to  and  beyond  the  '  Comstock  Lode,'  so- 
called,  in  the  State  of  Nevada,  the  right  of  way  is  hereby  granted  to  A.  Sutro, 
his  heirs  and  assigns,  to  run,  construct,  and  excavate  a  mining,  draining,  and 
exploring  tunnel:  also,  to  sink  mining,  working,  or  air  shafts  along  the  line  or 
course  of  said  tunnel,  and  connecting  with  the  same  at  any  point  which  may 
hereafter  be  selected  by  the  grantee  herein,  his  heirs  or  assigns.  The  said  tun- 
nel shall  be  at  least  eight  feet  high  and  eight  feet  wide,  and  shall  commence  at 
some  point  to  be  selected  by  the  grantee  herein,  his  heirs  or  assigns,  at  the  hills 
near  Carson  River,  and  within  the  boundaries  of  Lyon  County,  and  extending 
from  said  initial  point  in  a  westerly  direction  seven  miles,  more  or  less,  to  and 
beyond  said  Comstock  Lode ;  and  the  same  right  of  way  shall  extend  northerly 
and  southerly  on  the  course  of  said  lode,  either  within  the  same,  or  east  or  west 
of  the  same:  and  also  on  or  along  any  other  lode  which  may  be  discovered  or 
developed  by  the  said  tunnel. 

W.  C— 19. 


290  VESTED    EIGHTS.  §  214 

§  214.  Conditions  inserted  in  patents  for  mines  on 
Comstock  Lode,  Nevada. — In  issuing  patents  for  the  Corn- 
stock  Lode,  Nevada,  the  following  clause  has  been  inserted : 

"  That  the  claim  hereby  granted  and  conveyed  shall  be  sub- 
ject to  the  condition  specified  in  the  third  section  of  the  Act  of 
Congress,  approved  July  25th,  1866,  '  granting  the  right  of  way 
and  other  privileges  to  aid  in  the  construction  of  a  draining  and 
exploring  tunnel  to  the  Comstock  Lode,  in  the  State  of  Nevada,' 
and  the  grantee  herein  shall  contribute  and  pay  to  the  owners 
of  the  tunnel,  constructed  pursuant  to  said  act,  for  drainage  or 
other  benefits  derived  from  said  tunnel  or  its  branches,  the  same 
rate  of  charges  as  have  been  or  may  hereafter  be  named  in 
agreement  between  such  owners  and  the  companies  represent- 
ing a  majority  of  the  estimated  value  of  said  Comstock  Lode, 

"  Sec.  2.  And  be  it  further  enacted,  That  the  right  is  hereby  granted  to  the  said 
A.  Sutro,  his  heirs  and  assigns,  to  purchase,  at  one  dollar  and  twenty-five  cents 
per  acre,  a  sufficient  amount  of  public  land  near  the  mouth  of  said  tunnel  for 
the  use  of  the  same,  not  exceeding  two  sections,  and  such  land  shall  not  be  min- 
eral land  or  in  the  bona  fide  possession  of  other  persons  who  claim  under  any  law 
of  Congress  at  the  time  of  the  passage  of  this  act,  and  all  minerals  existing  or 
which  shall  be  discovered  therein  are  excepted  from  this  grant ;  that  upon  filing 
a  plat  of  said  land,  the  Secretary  of  the  Interior  shall  withdraw  the  same  from 
sale,  and  upon  payment  for  the  same  a  patent  shall  issue.  A_nd  the  said  A. 
Sutro,  his  heirs  and  assigns,  are  hereby  granted  the  right  to  purchase,  at  live 
dollars  per  acre,  such  mineral  veins  and  lodes  within  two  thousand  feet  on  each 
side  of  said  tunnel,  as  shall  be  cut,  discovered,  or  developed  by  running  and  con- 
structing the  same,  through  its  entire  extent,  with  all  the  dips,  spurs,  and  angles 
of  such  lodes,  subject,  however,  to  the  provisions  of  this  act,  and  to  such  legis- 
lation as  Congress  may  hereafter  provide :  Provided,  That  the  Comstock  Lode, 
with  its  dips,  spurs,  and  angles,  is  excepted  from  this  grant,  and  all  other  lodes, 
with  their  dips,  Spurs,  and  angles,  located  within  the  said  two  thousand  feet,  and 
which  are  or  may  be,  at  the  passage  of  this  act,  in  the  actual  bona  fide  posses- 
sion of  other  persons,  are  hereby  excepted  from  such  grant.  And  the  lodes 
herein  excepted,  oilier  than  the  Comstock  Lode,  shall  be  withheld  from  sale  by 
t In-  United  States;  and  if  such  lodes  shall  be  abandoned  or  not  worked,  pos- 
d.  and  held  in   conformity  to   exist  ing  mining  rules,  or  such  regulations  as 

have  been  or  may  be  prescribed  by  the  Legislature  of  Nevada,  they  shall  be- 
come subject  to  such  right  of  purchase  by  the  grantee  herein,  his  heirs  or  as- 
signs. 

"Sec. 3.  And  be  it  further  enacted,  That  all  persons,  companies,  or  corpora- 
tions owning  claims  or  mines  on  said  Comstock  Lode  or  any  other  lode  drained, 

benefited,  or  developed  bj  said  tunnel,  shall  hold  iheir  claims  subject  to  the 

Condition,  (which   shall    be  expressed    in   any   grant  they  may   hereafter   obtain 

from  the  United  States, )  that  they  shall  contribute  and  pay  to  the  owners  of  said 
tunnel  the  same  rate  of  charges  for  drainage  or  other  benefits  derived  from  said 

tunnel  OI  Li     branches,  as  have  been,  or  may  hereafter  lie,  named   in  agreement 

between  such  owners  and  the  companies  representing  a  majority  of  the  esti- 
mated value  of  said  <  lomstock  Lode  at  the  time  of  the  passage  of  this  act." 


§  214  VESTED   RIGHTS.  291 

at  the  time  of  the  passage  of  said  act,  as  provided  in  said  third 
section." 

Both  the  Acts  of  1870  and  1872  contained  clauses  guarding 
the  rights  of  the  owners  of  the  Sutro  Tunnel,  and  the  land  em- 
braced by  the  location  of  the  tunnel  was  withdrawn  from  sale.1 
In  May,  1876,  protests  were  filed  in  the  General  Land  Office, 
by  the  Sutro  Tunnel  Company,  against  the  issuance  of  any 
patents  for  mining  claims  in  certain  townships,  unless  the  con- 
dition referred  to  in  the  third  section  of  the  Act  of  July  25th, 
1866,  should  be  inserted  therein.  The  company  claimed  that 
under  that  act,  commonly  known  as  the  Sutro  Tunnel  Act,  no 
patents  should  be  issued  for  mining  claims  in  the  townships  ex- 
cept to  parties  holding  claims  on  the  Comstock  Lode,  and  to 
them  only  subject  to  that  condition.2     It  was  demanded: 

"  1st.  That  the  patents  on  the  Comstock  Lode  for  its  whole 
length  be  only  granted  with  the  restriction  made  in  Sec.  3  of  the 
above  act. 

"  2d.  That  the  mines  located  in  T.  16  and  17  N.,  7  R.  21  E., 
are  all  within  a  reasonable  distance  from  the  tunnel — probably 
on  lodes  cut  by  the  same ;  and  may  easily  be  reached  by  its 
branches,  and  therefore  should  be  withheld  from  sale." 

On  the  20th  January  a  decision  in  the  case  was  made  by  the 
Land  Office,  and  on  the  1st  of  February,  1869,  Mr.  Sutro  filed 
another  argument,  and  requested  a  re-examination  of  the  mat- 
ter. In  this  argument  ]ie  stated  that  "  all  the  mines  contained 
in  T.  16  and  17  N.,  R.  21  E.,  Mount  Diablo  Meridian,  may  con- 
veniently be  reached  by  branches  from  said  main  tunnel,  or  may 
otherwise  be  benefited  by  the  same  :  it  will  be  necessary,  there- 
fore, that  the  above  clause  be  inserted  in  all  patents  issued  for 
mines  situated  in  the  above  named  townships." 
He  then  summed  up  his  claim  as  follows,  viz : 
"  I  claim  under  the  law  of  July  25th,  1866,  as  follows : 
"  1st.  All  mines  embraced  within  2,000  feet  on  each  side  of 
said  tunnel  for  seven  miles  in  length,  as  indicated  by  blue  shading 
on  the  map  filed  with  the  Commissioner  of  the  General  Land 
Office  on  the  80th  day  of  July,  1866,  excepting  the  Comstock 
Lode,  are  to  be  withheld  from  sale  by  the  United  States. 

1  Decision  Commissioner,  March  8th,  1873,  Copp's  U.  S.  Mining  Decisions,  1G2. 

2  In  re  Sutro  Tunnel  Company,  Decision  Acting  Commissioner,  May  27th,  1876, 
3  Copp's  Land-owner,  34. 


292 


VESTED    RIGIITS. 


§214 


"  2d.  Patents  may  be  issued  to  all  mines  on  the  Comstock 
Lode,  including  those  situated  on  said  lode  within  2,000  feet  on 
each  side  of  said  tunnel,  also  to  all  mines  in  T.  16  and  17  N., 
R.  21  E.,  Mount  Diablo  Meridian,  outside  of  said  2,000  feet  on 
each  side  of  said  tunnel,  provided  that  these  patents  shall  con- 
tain the  conditions  specified  in  the  third  section  of  the  Act  of 
July  25th,  1866." 

On  the  25th  of  February,  1860,  the  Office,  after  a  re-exami- 
nation of  the  case,  decided  that : 

"  1st.  The  right  to  purchase  mineral  veins  or  lodes  granted  to 
A.  Sutro,  his  heirs  and  assigns,  by  the  second  section  of  the 
act,  is  limited  to  2,000  feet  on  each  side  of  the  tunnel,  con- 
structed from  the  initial  point  at  the  hills  near  Carson  River,  to 
and  beyond  the  Comstock  Lode,  and  applies  only  to  lodes  other 
than  the  Comstock  within  said  limits,  cut,  discovered,  or  devel- 
oped by  mining  and  constructing  said  tunnel,  and  not  at  the 
passage  of  the  act  in  the  actual  bona  fide  possession  of  other 
persons. 

"  2d.  Veins  or  lodes  other  than  the  Comstock,  lying  within 
2,000  feet  on  either  side  of  said  tunnel,  at  the  passage  of  the 
act  in  the  actual  bona  fide  possession  of  other  persons,  are  to  be 
withheld  from  sale  by  the  United  States ;  but  if,  after  the  con- 
struction of  the  tunnel,  it  shall  be  found  that  some  of  the  lodes 
so  withheld  from  sale  arc  not  cut  by  the  tunnel,  the  restriction 
as  to  sale  will  no  longer  be  applied  to  them  ;  but  all  of  the 
lands  within  said  2,000  feet  limits  will  be  reserved  from  sale 
until  after  the  construction  of  the  tunnel,  unless  its  commence- 
ment and  prosecution  should  be  procrastinated  for  such  a  length 
of  time  as  to  imply  its  abandonment  or  the  inability  of  the 
grantees  under  the  act  to  accomplish  the  undertaking. 

"  3d.  That  all  patents  issued  to  claimants  of  mines  on  the 
Comstock  Lode  must  contain  the  condition  specified  in  the  third 
section  of  said  act. 

"  4th.  That  the  like  condition  is  to  he  inserted  in  patents 
issued  for  mines  on  any  other  lode,  drained,  benefited,  or  de- 
veloped by  said  tunnel. 

"5th.  That  the  only  patentahle  lodes  other  than  the  Com- 
Btock,  capable  of  being  drained,  benefited,  or  developed  by  said 
tunnel.  ;ire  such    as   may  be  thus  affected  by  means  of  branches 


§   214  VESTED    RIGHTS.  293 

connecting  with  the  tunnel,  there  being  no  patentable  lodes 
within  2,000  feet  of  said  tunnel,  and  that  the  construction  of 
such  branches  must  be  authorized  by  the  act. 

"6th.  That  the  act  authorizes  the  construction  of  branches 
only  along  the  Comstock  Lode,  and  along  any  other  lode  which 
may  be  discovered  or  developed  by  said  tunnel. 

"  7th.  That  the  lodes   here  referred  to  are  what  are  called 

*  blind  lodes,'  the  existence  of  which  it  is  expected  will  be 
disclosed   by  the  construction   of   the   tunnel,   and    that   lodes 

*  which  may  be  discovered  or  developed  by  the  construction  of 
the  tunnel,'  do  not  include  lodes  already  discovered  or  which 
may  hereafter  be  discovered  before  its  construction,  and  that 
there  is  consequently  no  authority  granted  by  the  act  for  the 
construction  of  branches  along  these,  and  the  condition  speci- 
fied in  the  third  section  is  not  applicable  to  patents  issued  to 
these  claims. 

"  8th.  And  that  consequently  the  only  mines  or  lodes  in  any 
way  affected  by  the  Act  of  July  25th,  1866,  are  :  First — The 
mines  on  the  Comstock  Lode.  Second — Those  lying  within 
2,000  feet  of  the  proposed  line  of  said  tunnel.  Third — Such 
new  lodes  as  may  be  discovered  or  developed  by  the  construc- 
tion of  the  tunnel,  the  existence  of  which  remaining  unknown 
until  thus  brought  to  light. 

"  9th.  That  the  only  patents  subject  to  the  condition  specified 
in  the  third  section,  or  that  became  subject  to  it  prior  to  the 
construction  or  commencement  of  the  tunnel,  are  those  issued 
for  mines  on  the  Comstock  Lode." 

From  this  decision  Mr.  Sutro  took  an  appeal  to  the  Secretary 
of  the  Interior,  who,  on  the  6th  of  July,  1870,  affirmed  the  de- 
cision of  the  General  Land  Office. 

From  the  foregoing  it  will  be  seen  that  more  than  five  years 
had  elapsed  since  the  very  questions  presented  by  the  Sutro 
Tunnel  Company  were  decided  by  the  appellate  authority,  and 
the  matter  was  res  judicata.  The  Commissioner  said  :  "  The 
request  of  the  attorneys  for  the  Sutro  Tunnel  Company  that 
the  decision  of  this  Office,  as  affirmed  by  the  Honorable  Secre- 
tary of  the  Interior,  shall  not  be  adhered  to,  is  denied,  as  this 
Office  is  bound  by  the  construction  of  a  statute  as  given  by  the 
head  of  the  Department. 


294  VESTED    RIGHTS.  §  214 

"  It  may  be  proper  in  this  connection  to  decide  what  claims 
shall  be  considered  as  on  the  Comstock  Lode,  within  the  mean- 
ing of  the  Act  of  July  25th,  1866,  and  therefore  coming  within 
the  provisions  of  the  third  section  of  said  act. 

"  Said  act  in  the  first  section  declares  '  that  for  the  purpose 
of  the  construction  of  a  deep  draining  and  exploring  tunnel  to 
and  beyond  the  "  Comstock  Lode,"  so  called,  in  the  State  of 
Nevada,  the  right  of  way  is  hereby  granted,'  etc.  In  the  third 
section  reference  is  made  to  mines  on  said  '  Comstock  Lode.' 

"  To  determine  what  patents  should  contain  said  condition,  it 
is  only  necessary  to  determine  what  claims  had  been  located  on 
the  Comstock  Lode,  so  called,  at  the  date  of  the  passage  of 
this  act. 

"  On  the  31st  July,  1866,  five  days  after  the  passage  of  the 
said  act,  Mr.  Sutro  filed  in  this  office  a  '  map,  showing  the  loca- 
tions of  the  Sutro  Tunnel  and  the  Comstock  Lode,  State  of 
Nevada.' 

"  On  this  map  the  Comstock  Lode  is  represented  as  extending 
from  the  Utah  claim  on  the  north  to  the  North  American  on  the 
south  ;  and  it  is  to  be  presumed,  as  he  was  the  party  in  interest, 
that  he  represented  upon  said  plat  the  extent  of  what  was 
called  the  Comstock  Lode  at  the  time  of  the  passage  of  said 
act.  In  this  map,  the  mines  lying  in  the  direction  of  Silver 
City  from  Gold  Hill,  are  not  represented  as  being  upon  what 
was  called  the  Comstock  Lode,  as  for  instance  the  Dayton,  Pride 
of  the  West,  Kossuth  on  the  *  Monte  Christo  Lode,'  the  Boston, 
St.  Louis,  Alpha,  Succor,  etc. 

"The  treatise  on  '  Mining  and  Metallurgy  of  Gold  and  Sil- 
ver,' by  J.  Arthur  Phillips,  published  in  1867,  'gives  the  names 
of  the  various  mining  claims  on  the  Comstock  Lode  as  far  as  its 
continuity  has  been  ascertained.'  Mr.  Phillips  refers  to  the 
Utah  as  the  northern  claim  and  the  Baltimore  American  as  the 
southern  claim  on  said  Comstock  Lode. 

•■The  State  Surveyor-General  of  Nevada,  (S.  H.  Marlette) 

in  bis  official  report  fur  the  year  L865,  gives  a  list  of  the  mining 
claim-  on  I  In-  <  lomstock  a-  extending  from  the  Utah  to  the  Bal- 
timore  American,  hoth  inclusive. 

••.I.  Rose  Browne,  in  his  report  for  1868,  page  341,  states 
thai  the  continuity  of  the  Comstock   Lode  has  been  ascertained 


§  214  VESTED    RIGHTS.  295 

'  for  a  length  of  about  three  and  a  half  miles, '  and  gives  the 
same  claims  as  those  stated  in  the  State  Surveyor-General's 
report. 

"  Raymond,  in  his  report  for  1868,  says  that  the  Comstock  Lode 
has  a  general  north  and  south  course,  and  has  been  traced  on 
the  surface  more  than  27,000  feet,  and  that  about  19,000  feet 
have  been  actually  explored,  to  wit,  all  the  locations  from  the 
Utah  mine  to  the  south  part  of  the  Overman. 

"  Raymond,  in  his  report  for  1869,  again  refers  to  the  fact 
that  the  Comstock  extends  from  the  Utah  to  the  South  Overman, 
and  states  under  the  title,  'Mines  on  the  continuation  of  the 
Comstock,'  that  '  so  many  of  the  Comstock  mines  proper  have 
been  compelled  to  extract  from  their  old  workings  ores  once 
cast  aside  as  not  worth  enough  to  pay  for  treatment,  that  the 
mills  as  well  as  the  mines  have  found  their  advantage  in  reduc- 
ing  the  prices  of  custom  work,  to  enable  these  operations  to  be 
continued ;  and  this  reduction  of  prices  has  in  turn  caused  the 
resumption  of  active  work  on  many  a  mining  claim  beyond  the 
limits  of  the  recognized  Comstock  Ledge,  though  on  the  exten- 
sions north  and  south  of  its  supposed  course,  south  of  the  Over- 
man, are  three  or  four  claims  which  have  lain  idle  for  years ; 
*  *  *  north  of  the  Utah  work  has  been  done  for  some 
time  on  small  claims.' 

"Raymond,  in  his  report  for  1870,  again  refers  to  the  fact 
that  the  Comstock  has  been  explored  from  the  Utah  to  the 
South  Overman,  and  adds :  '  There  are  further  locations  both 
north  of  the  Utah  and  south  of  the  Overman.' 

"  Clarence  King,  in  his  report,  vol.  3,  page  37,  states  that  the 
course  of  the  Comstock  is  about  north  25°  east ;  '  In  Seven 
Mile  Canon,  near  the  base  of  Cedar  Hill,  is  the  most  northern 
known  portion  of  the  lode.  From  that  point  it  continues 
south  in  a  nearly  direct  line  underneath  Virginia  City,  across  the 
divide,  past  Gold  Hill  to  American  Flat.'  On  page  40  he  states 
that  'in  general,  then,  the  lode  has  a  longitudinal  expansion  of 
22,000  feet.'  On  page  41  he  refers  to  the  '  4,300  feet  of  the 
southern  end  of  the  lode '  as  extendins:  '  from  the  furthest 
workings  of  the  Uncle  Sam  to  the  North  Alpha  line.'  Page 
98.  '  The  course  of  the  Comstock  Lode  is  nearly  north  and 
south,  maintaining  a  general  conformity   in  direction  with  the 


296  VESTED    RIGHTS.  §  214 

trend  of  the  Washoe  Mountains,  in  which  it  is  contained.' 
Page  99.  The  extent  to  which  the  vein  has  been  clearly  traced, 
and  on  which  mining  claims  have  been  located,  is  about  four 
miles.  At  either  extremity  of  this  ground,  however,  and  par- 
ticularly on  the  north,  the  vein  has  been  but  little  explored, 
and  has  not  been  thus  far  proved  to  be  very  valuable.  On  page 
99  Mr.  Kino;  cfives  a  'list  of  the  mining  claims  located  on  the 
course  of  the  lode  as  far  as  its  continuity  has  been  traced  with 
any  certainty,"  extending  from  the  Utah  on  the  north  to  the 
south  boundary  of  the  Baltimore  American.  Page  188.  '  There 
are  a  number  of  mines  in  the  Washoe  region,  that,  being  located 
on  other  veins  than  the  Comstock,  are  generally  classed  as  "  out- 
side. "  They  are  on  "  various  ledges."  '  Among  the  '  outside  ' 
mines,  he  refers  to  the  Occidental,  Monte  Christo,  Lady  Bryan, 
and  the  Twin. 

"  The  commission  appointed  under  the  authority  of  the  Act 
of  Congress,  approved  April  4th,  1871,  '  to  examine  and  report 
upon  the  Sutro  Tunnel,  in  the  State  of  Nevada,'  in  their  report 
(Ex.  Doc.  Xo.  15,  Forty-second  Congress,  Second  Session)  state 
on  the  fourth  page  thereof,  that  the  lode  generally  known  as  the 
Comstock  Lode  '  has  an  extent  not  yet  fully  developed,  but  which 
reaches  certainly  from  the  Ophir  mine  on  the  north  to  the  Uncle 
Sam  and  Overman  on  the  south,  a  distance  of  12,000  feet.  Be- 
yond these  points  the  lode  is  supposed  to  extend  to  the  north  and 
south,  to  the  Seven  Mile  Canon  in  the  former  direction,  and  to 
the  American  Flat  in  the  latter.  It  may  therefore  be  said  that 
the  fissure  itself  is  believed  to  have  been  traced  from  the 
Ji'rrrinrrg  known  as  the  Utah  mines  on  the  north  to  the  locality 
known  as  the  American  Flat  or  'American  City'  on  the  south, 
a  length  of  about  22,000  feet.' 

"  All  of  the  authorities  hereinbefore  referred  to  concur  in 
regard  to  the  locality  and  course  of  the  lode  commonly  known 
as  the  Comstock,  and  agree  in  their  statements  in  regard  to  the 
extent  thereof.  They  all  describe  the  Comstock  Lode,  so  called, 
as  extending  from  the  Utah  and  northerly  to  the  Baltimore 
American,  and  southerly  in  the  same  direction.  The  mines 
lying  in  the  direction  of  Silver  City  are  not  referred  to  by  these 
authorities  as  being  on  the  so-called  Comstock  Lode,  nor  yet  are 
they  located  in  the  same  general  direction  as  are  those  mines 
whirh  they  refer  t<>  as  being  on  the  Comstock. 


§  214  VESTED    RIGHTS.  297 

"  The  only  mining  claim  which  has  been  entered  in  T.  1G  X., 
E.  21  E.,  Mt.  Do.  Mer.,  lying  in  the  direction  of  Silver  City  and 
southerly  from  surveys  49  and  55,  which  was  located  as  being 
on  the  Comstock  Lode,  is  that  embraced  by  survey  No.  79,  lo- 
cated by  H.  J.  F.  Scheel,  December  30th,  1872,  as  the  South 
Comstock. 

"  The  Sutro  Tunnel  Company,  in  its  argument  in  this  case, 
refers  to  the  recent  decision  of  the  Supreme  Court  in  case  of 
the  United  States  v.  The  Union  Pacific  Railroad  Company,  as 
supporting  the  theory  advanced  by  it  in  regard  to  the  construc- 
tion of  the  said  Sutro  Tunnel  Act. 

"  In  this  decision  the  Supreme  Court  declare  that  in  constru- 
ing an  act  of  Congress  Ave  are  not  at  liberty  to  recur  to  the 
views  of  individual  members  in  debate,  nor  to  consider  the  mo- 
tives which  influenced  them  to  vote  for  or  against  its  passage. 
The  act  itself  speaks  the  will  of  Congress,  and  this  is  to  be  as- 
certained from  the  language  used.  But  Courts  may,  with  pro- 
priety, in  construing  a  statute,  recur  to  the  history  of  the  times 
when  it  was  passed ;  and  this  is  frequently  necessary  in  order  to 
ascertain  the  reason  as  well  as  the  meaning  of  particular  pro- 
visions in  it.  *  *  *  '  No  argument  can  be  drawn  from  the 
wisdom  that  comes  after  the  fact.  Congress  acted  Avith  refer- 
ence to  a  state  of  things  supposed  to  exist  at  the  time,  and  no 
aid  can  be  dem*ed  in  the  interpretation  of  its  legislation  from 
the  consideration  that  the  theory  on  which  it  proceeded  turned 
out  not  to  be  correct.' 

"  Whatever  obligations  therefore  rest  on  the  company  incor- 
porated to  accomplish  this  purpose  must  depend  on  the  true 
meaning  of  the  enactment  itself,  vieAved  in  the  light  of  cotem- 
poraneous  history. 

"  FolloAving  these  rules  in  the  construction  of  this  statute,  to 
wit,  that  the  true  meaning  of  a  statute  is  to  be  ascertained 
from  the  language  used,  vieAved  in  the  light  of  cotemporaneous 
history,  but  one  conclusion  can  be  reached  in  regard  to  Avhat 
claims  should  be  considered  as  on  the  Comstock  Lode  within  the 
meaning  of  the  Act  of  July  26th,  1866,  and  therefore  subject 
to  the  provisions  of  the  third  section  of  said  act. 

"  The  question  is  not  Avhatis  now  known  as  the  Comstock  Lode, 
what  nor  in  the  future  may  prove  to  be  the  Comstock  Lode,  but  Avhat 


298  VESTED   RIGHTS.  §  215 

was  known  as  and  called  the  Comstock  Lode  at  the  date  of  the  pas- 
sage of  said  act.  The  language  used  in  the  first  section  of  the 
act  is  '  that  for  the  purpose  of  the  construction  of  a  deep  drain- 
ing and  exploring  tunnel  to  and  beyond  the  "  Comstock  Lode," 
so  called,  in  the  State  of  Nevada,'  etc.  All  authorities  upon 
the  subject  which  I  have  been  able  to  examine,  agree  in  regard 
to  what  was  known  as  the  Comstock  Lode  at  the  date  of  the 
passage  of  the  act,  and  for  several  years  thereafter.  These 
authorities,  including  Mr.  Sutro  himself,  represent  and  describe 
the  Comstock  Lode  as  extending  from  the  Utah  claim  and  north- 
erly to  the  Baltimore  American,  and  southerly  in  the  same 
direction. 

"  From  a  careful  and  thorough  examination  of  this  case,  I  am 
clearly  of  the  opinion  that  the  only  patents  which  should  contain 
the  condition  specified  in  the  third  section  of  the  Act  of  July 
25th,  1866,  are  such  as  may  be  issued  for  mining  claims  on  the 
Comstock  lode  as  hereinbefore  defined  and  described,  to  wit,  on 
the  lode  extending  from  the  Utah  and  northerly  to  the  Balti- 
more American,  and  southerly  in  the  same  direction." 

§  215.  Claims  rejected. — A  claim  within  the  Sutro  Tunnel 
Grant  was  rejected  under  the  Act  of  1866.  It  was  not  within 
the  Comstock  Lode,  which  was  excepted  from  the  grant,  and 
therefore  could  not  be  patented.1 

1  In  re  McKibben  Lode,  Decision  of  Commissioner  March  29th,  1873,  Copp's 
V.  S.  Mining  Decisions,  179. 


§  216  HOMESTEADS    AND    TOWN    SITES.  299 


CHAPTER  XV. 

HOMESTEADS   AND   TOWN  SITES— HOMESTEAD  EIGHTS   ON   NON- 
MINERAL  LANDS— TOWN-SITE  ENTRIES. 

§  216.   Non-mineral  lands  open  to  homesteads. 

§  217.   Pre-emption  of  homesteads  on  agrieultural  lands  formerly  designated  as 

mineral. 
§  218.   Homestead  entries  including  mineral  deposits. 
§  219.   Rights  of  pre-emptioners  and  homestead  claimants. 
§  220.   Conflicts  between  homestead  and  mill-site  claimants. 
§  221.  Title  to  town  lots  subject  to  mineral  rights. 
§  222.  Conflicts  between  mineral  and  town-site  claimants.  ► 

§  216.  Non-mineral  lands  open  to  homesteads. — Section 
2341  of  the  Revised  Statutes  is  as  follows  :  "  Wherever,  upon  the 
lands  heretofore  designated  as  mineral  lands,  which  have  been  ex- 
cluded from  survey  and  sale,  there  have  been  homesteads  made  by 
citizens  of  the  United  States,  or  persons  who  have  declared  their 
intention  to  become  citizens,  which  homesteads  have  been  made, 
improved,  and  used  for  agricultural  purposes,  and  upon  which 
there  have  been  no  valuable  mines  of  gold,  silver,  cinnabar,  or 
copper  discovered,  and  which  are  properly  agricultural  lands, 
the  settlers  or  owners  of  such  homesteads  shall  have  a  right  of 
pre-emption  thereto,  and  shall  be  entitled  to  purchase  the  same 
at  the  price  of  one  dollar  and  twenty-five  cents  per  acre,  and  in 
quantity  not  to  exceed  one  hundred  and  sixty  acres ; 2  or  they 
may  avail  themselves  of  the  provisions  of  chapter  five  of  this 
Title,  relating  to  Homesteads." 

In  carrying  out  the  provisions  of  the  tenth  section  of  the  Act 
of  1866,  (which  was  substantially  the  same  as  Rev.  Stat.  2811) 
it  was  held,  that  if  the  deputy  surveyor  returns  the  land  as 
agricultural,  and  there  is  no  data  to  the  contrary,  and  no  one 

1  Note.— Sec.  10  of  the  Act  of  1SG6,  14  U.  S.  Stats.  253,  was  same  as  above,  with 
the  following  after  the  words  "160  acres":  "Or,  said  parties  may  avail  them- 
selves of  the  provisions  of  the  Act  of  Congress,  approved  May  20th,  1862,  en- 
titled '  An  Act  to  secure  homesteads  to  actual  settlers  on  the  public  domain,' 
and  acts  amendatory  thereof." 


300  HOMESTEADS    AND    TOWN    SITES.  §  217 

files  an  affidavit  of  its  being  more  valuable  for  mineral  than  for 
agricultural  purposes,  the  settler  will  be  allowed  to  enter  it  un- 
der the  provisions  of  the  tenth  section.  If  an  affidavit  is  filed  al- 
leo-ino-  the  land  to  be  mineral,  a  trial  must  be  had  to  determine 
whether  it  is  more  valuable  for  mining  purposes  than  for  agri- 
cultural. In  such  cases,  a  day  will  be  fixed  for  the  hearing, 
giving  to  the  claimants  and  to  the  party  filing  the  affidavit  suf- 
ficient notice  to  enable  them  to  be  present  with  their  witnesses ; 
and  when  the  tract  had  been  occupied  for  agricultural  purposes 
and  improved  as  such  before  the  date  of  the  Act  of  July  26th, 
18G6,  the  burden  of  proof  was  upon  the  party  seeking  to  estab- 
lish its  mineral  character,  and  the  testimony  should  be  of  a 
nature  clearly  proving  the  truth  of  such  allegations  before  a 
decision  is  rendered  against  the  right  of  the  settler  to  enter  the 
land.  Should  the  deputy  surveyor  return  the  land  as  mineral, 
the  settler  will  be  required  to  furnish  satisfactory  proof  of  the 
error  of  such  return  prior  to  entering  the  land.  The  return  of 
a  deputy  surveyor  is  not  conclusive  in  these  cases  when  dis- 
puted, but  the  matter  must  be  investigated  by  the  examination 
of  witnesses,  capable  from  experience  and  observation,  and  from 
previous  examination,  to  testify  understandingly  in  reference  to 
the  existence  of  minerals  upon  any  particular  tract,  and  whether 
the  deposit  is  of  sufficient  extent  to  render  it  more  valuable  for 
mining;  than  for  agriculture.  When  lands  had  not  been  filed 
upon,  the  officers  Avere  required  to  satisfy  themselves  as  to 
which  class  they  belonged,  before  taking  steps  looking  to  their 
disposal.1 

§  217.  Pre-emption  of  homestead  on  agricultural  lands 
formerly  designated  as  mineral. — From  the  statute  it  is 
probable  that  the  right  to  enter  lands  as  agricultural,  whfch  as 
mineral  lands  were  previously  excluded  from  survey  and  sale, 
is  confined  entirely  to  actual  settlers  coming  within  the  require- 
ments of  the  pre-emption  laws,  who,  upon  making  competent 
proof  that  the  tracts  actually  settled  upon,  occupied,  and  im- 
proved by  them  as  homesteads,  contain  no  mines  of  gold,  silver, 
cinnabar,  or  copper,  are  entitled  to  the  execution  in  their  favor 
of  the  pre-emption  or  homestead  laws. 

I  [nBtruetlons  May  L6th,  1868,  Zabriskie's  Land  Laws,  208-211,  Copp's  U.  S. 
Mining  I  >'-'isioiis,  2i8. 


§  218  HOMESTEADS    AND    TOWN    SITES.  301 

Where  an  attempt  was  made  to  prove  the  agricultural  char- 
acter of  a  certain  tract  previously  reserved  as  mineral  land,  to 
the  end  that  it  might  inure  to  a  railroad  company  and  not  by  a 
party  coming  within  the  purview  of  the  tenth  section,  it  was 
held  that  the  whole  proceeding  was  without  legal  sanction,  and 
the  land  was  treated  as  mineral.1 

§  218.   Homestead  entries  including  mineral  deposits. 

— Where  lands  containing  valuable  mineral  deposits  have  been 
included  in  a  homestead  entry,  the  entry  will  be  canceled  at 
any  time  prior  to  the  issuance  of  the  patent,  upon  satisfactory 
evidence  of  the  existence  of  such  valuable  deposits.  Lands 
containing  gold,  silver,  etc.,  cannot  be  taken  under  the  homestead 
or  other  laws  for  the  disposal  of  agricultural  lands.  If  a  party 
undertakes  to  homestead  mineral  land,  an  affidavit  to  that  effect, 
setting  forth  the  facts,  should  be  filed  in  the  local  land  office, 
and  a  hearing  will  be  ordered  and  a  decision  rendered  by  the 
General  Land  Office  in  accordance  with  the  facts  proven.  But 
when  land  has  passed  by  patent  to  agricultural  claimants,  and 
the  mineral  deposits  are  not  discovered  until  afterward,  they 
have  been  held  to  pass  by  the  patent,  (in  the  absence  of  words 
of  reservation)  and  the  Land  Office  to  have  no  further  juris- 
diction in  the  matter,  the  lands  ceasing  to  become  a  part  of  the 
public  domain.2 

Where  a  party  obtains  a  patent  to  a  tract  of  land  under  the 
pre-emption  or  homestead  laws,  which  at  the  date  of  the  patent 
embraced  a  known  mine,  he  does  not  obtain  title  to  such  mine  by 
virtue  of  such  patent.  The  only  way  to  obtain  Government 
title  to  mines  and  mineral  lands  is  by  compliance  with  the  min- 
ing acts.  The  only  restrictions  specified  in  the  pre-emption  or 
homestead  laws  are  in  regard  to  known  mines.  When  the  min- 
eral character  of  a  specified  tract  first  became  known  subse- 
quent to  the  issuance  of  a  patent  therefor  as  agricultural  land, 
the  Land  Office  has  not  heretofore  pursued  the  inquiry  respect- 
ing it.3     Owners  of    known  mines  may  make  applications  for 

1  Decision  of  Cormnissioner,  Oct.  21st,  1871,  Copp's  U.  S.  Mining  Decisions,  00. 

2  Decision  of  Commissioner,  Nov.  11th,  1873,  Copp's  U.  8.  Mining  Decisions, 
233;  1  Copp's  Land-owner,  77. 

3  Decision  of  Commissioner,  June  21st,  187G,  3  Copp's  Land-owner,  50 


302  HOMESTEADS    AND    TOWN    SITES.  §   219 

patents,  the  same  as  though  no  homestead  entries  had  ever  been 
allowed  covering  their  claims.1 

§  219.  Rights  of  pre-emptioners  and  homestead  claim- 
ants.— Congress  did  not  intend  to  abolish  the  long-established 
distinction  between  mineral  and  agricultural  lands,  or  to  allow 
mineral  lands  to  be  classed  and  disposed  of  as  agricultural, 
but  provided  that  the  public  surveys  might  be  extended  over  a 
region  that  was  so  clearly  mineral  in  character,  that  it  had  pre- 
vious to  the  passage  of  the  mining  acts  been  reserved,  and  that 
such  tracts  as  should  appear  to  be  "  properly  "  and  "  clearly 
agricultural "  might  be  disposed  of  under  the  laws  applicable 
to  agricultural  lands.  The  act  gives  no  rights  to  agricultural 
claimants  except  to  such  lands  as  are  clearly  and  properly  agri- 
cultural. Where  land  is  returned  by  the  Surveyor-General  as 
mineral,  and  is  in  a  well-known  mineral  district,  the  burden 
of  proof  is  upon  the  party  who  seeks  to  establish  its  agricul- 
tural character.  Where  testimony  failed  to  establish  the  incor- 
rectness of  the  Surveyor-General's  return,  or  to  affirmatively 
establish  that  the  land  in  question  was  clearly  and  properly  agri- 
cultural in  character,  and  the  land  did  not  appear  to  have  been 
thoroughly  prospected,  but  the  evidence  showed  that  nearly  the 
whole  of  it  had  been  located  by  different  persons  as  mineral 
land,  the  tracts  were  held  reserved  as  such.2 

The  object  of  the  act  was  to  give  to  persons  who  have  in  good 
faith  made  agricultural  settlements  on  public  lands  theretofore 
designated  as  mineral,  but  subsequently  determined  to  be  agri- 
cultural, a  preference  in  pre-empting  or  entering  the  land  as 
homesteads.8 

After  a  consideration  of  testimony,  certain  land  was  held  min- 
eral in  character,  and  subject  to  be  disposed  of  under  the  mining 
statutes.  It  was  claimed,  on  behalf  of  the  pre-emption  claimant, 
thai  the  tenth  section  gave  to  qualified  persons  who  had,  prior  to 
the  passage  of  the  act,  made  homesteads  on  lands  theretofore 

1  l;«v.  Stuts.  2268,  2289.  In  re  <  Ihampion  .Mine,  Decision  Commissioner,  March 
26th,  1^77,  1  Copp's  L.  O.  17. 

I  M  .ii  i  i  urtis,  Decision  of  Commissioner,  Oct.  24th,  187G,  3  Copp's  Land- 
owner, L30. 

:;  Smith  /■.  Stewart,  Decision  of  Acting  Secretary,  Dec.  nth,  1872,  Copp's  U. 
s.  Mining  i  lecisions,  i^"'. 


§§  220-1  HOMESTEADS    AND   TOWN    SITES.  303 

designated  as  mineral,  and  excluded  from  survey  and  sale,  a  right 
of  pre-emption  or  homestead  therein,  unless,  before  the  passage 
of  the  act,  valuable  mines  of  gold,  silver,  cinnabar,  or  copper 
had  been  discovered  thereon ;  and  further,  that  the  subsequent 
discovery  of  such  mines  did  not  affect  the  right  of  pre-emption 
or  homestead  thus  acquired.  This  was  held  by  the  Secretary 
not  to  be  the  proper  construction.1 

§  220.  Conflicts  between  homestead  claimants  and 
mill-site  owners. — The  question  of  bad  faith  and  insufficiency 
of  cultivation  on  the  part  of  a  homestead  claimant  cannot  enter 
into  a  controversy  during  the  period  allowed  by  law.  It  has 
been  uniformly  held  that  a  homestead  entry  prior  to  the  expira- 
tion of  the  time  allowed  by  law,  can  only  be  canceled  for 
abandonment,  or  when  in  conflict  with  a  properly  asserted  prior 
right.  The  homestead  entry  of  a  party  was  ordered  to  remain 
suspended  until  a  company  claiming  the  land  as  a  mill-site,  pre- 
sented the  following  evidence : 

1st.  Duly  certified  copy  of  the  local  laws  in  force  at  the  date 
of  locating  their  mill-site. 

2d.  Copies  of  abstracts  of  the  deed  from  their  grantors. 

3d.  Evidence  of  full  compliance  with  the  local  laws  and  cus- 
toms relating  to  mill-sites. 

In  case  such  evidence  was  found  satisfactory,  it  was  said  that 
the  entry  of  the  homestead  claimant  would  be  canceled  for  so 
much  of  the  land  embraced  therein  as  properly  belonged  to  the 
company  claiming  the  mill  site.2 

§  221.   Title  to  town  lots  subject  to  mineral  rights. — 

Section  2386  of  the  Revised  Statutes  reads :  "  Where  mineral 
veins  are  possessed,  which  possession  is  recognized  by  local 
authority,  and  to  the  extent  so  possessed  and  recognized,  the  title 
to  town  lots  to  be  acquired  shall  be  subject  to  such  recognized 

1  Smith  v.  Stewart,  Decision  of  Acting  Secretary,  Dec.  14th,  1872,  Copp's  U.  S. 
Mining  Decisions,  133. 

-Newark  Mill  and  Mining  Co.  v.  Meinke,  Decision  of  Commissioner,  August 
13th,  1875,  affirmed  by  the  Secretary,  April  29th,  1876,  3  Copp's  Land-owner,  67. 
General  provisions  as  to  homesteads,  see  Revised  Statutes  of  the  United  States, 
Sees.  2289-2317;  Instructions  thereunder,  June  17th,  1875,  Copp's  Public  Laws, 
182 ;  Forms,  Ibid.  195. 


304  HOMESTEADS    AND    TOWN    SITES.  §  221 

possession  and  the  necessary  nse  thereof  ;  but  nothing  contained 
in  this  section  shall  be  so  construed  as  to  recognize  any  color  of 
title  in  possessors  for  mining  purposes  as  against  the  United 
States."  1 

The  Town-site  Acts  of  March  2d,  1867,  and  June  8th,  1868, 
declared  that  no  title  should  be  acquired  under  their  provisions 
to  any  mine  of  gold,  silver,  cinnabar,  or  copper,  or  to  any  valid 
mining  claim  or  possession  held  under  existing  laws.  A  bona 
fide  mining  claim,  therefore,  held  in  compliance  with  the  local 
laws  and  regulations,  and  the  Congressional  enactments,  situate 
within  the  exterior  boundaries  of  the  premises  embraced  by  the 
town-site  applications,  might  be  entered  in  accordance  with  the 
law  and  the  instructions.2 

Section  2392  Rev.  Stats,  provides  "  that  no  title  shall  be 
acquired  under  the  foregoing  provisions  of  this  chapter,  to  any 
mine  of  gold,  silver,  cinnabar,  or  copper ;  or  to  any  valid  mining 
claim  or  possession  held  under  existing  laws  "  ;  to  which,  there- 
fore, no  title  can  be  acquired  by  a  town-site  entry  or  patent. 
Lands  which  embrace  lode  claims  may  be  included  Avithin  a 
town-site  entry  or  patent ;  and  in  such  cases,  when  patents 
issue  for  the  town  sites,  the  following  clause  is  inserted :  "Pro- 
vided, that  no  title  shall  be  hereby  acquired  to  any  mine  of 
gold,  silver,  cinnabar,  or  copper,  or  to  any  valid  mining  claim 
or  possession,  held  under  existing  laws  ;  and  provided  further, 
that  the  grant  hereby  made  is  held  and  declared  to  be  subject 
t<»  all  the  conditions,  limitations,  and  restrictions  contained  in 
Section  2386  of  the  Revised  Statutes  of  the  United  States,  so 
far  as  the  same  arc  applicable  thereto."  Mining  claims  may, 
therefore,  be  patented  when  within  town  sites;  and  applications 
for  mining  claims  arc  allowed  to  be  filed,  even  though  the 
same  may  conflict  with  or  be  embraced  by  the  exterior  bound- 
aries of  a  town-site  application.8 

The  fact,  therefore,  that  a  given  tract  of  land  has  been  entered 
or  patented  as  ;i  town  site,  in  no  way  prevents  the  owner  of  a  lode 
claim  from  securing  a  patent  to  his  mine  upon  compliance  with 

'  Rev.  Btate.  2386;  Sec.  '-'.  Ad  of  March  3d,  L865,  L3  U.  8.  stats,  r.30. 
-  in  re  Application  of  Nagler,  Decision  of  <  'ommissioner,  Jan.  21st,  1873,  Copp's 
V.  8.  Mining  Decisions,  166. 
&  Decision  of  <  lommissioner,  Aug.  19th,  1872,  Copp's  U.S.  Mining  Decisions,  135. 


§  221  HOMESTEADS    AND    TOWN    SITES.  305 

the  terms  of  the  mining  act,  as  the  same  is  excluded  from  the 
operation  of  such  town-site  patent. 

The  rule  had  been  laid  down  that  placer  mining  ground  could 
not  be  included  within  the  exterior  boundaries  of  a  town-site 
patent,  but  this  rule  was  subsequently  declared  erroneous,  and 
it  was  held  that  the  law  clearly  contemplated  that  towns  would 
exist  in  mineral  localities,  and  that  entries  might  be  made  of 
such  town  sites. 

As  the  Government,  in  issuing  patents  for  town  sites,  conveys 
the  premises  within  the  exterior  boundaries  of  the  town-site 
entry  only  in  accordance  with  the  provisions  of  law,  the  title  to 
all  mines  of  gold,  silver,  cinnabar,  or  copper,  and  to  all  valid 
mining  claims  or  possessions  held  under  existing  laws,  which 
are  situated  within  such  exterior  boundaries,  still  remains  in  the 
United  States  after  patent  has  issued  for  such  town  site.  Title 
to  these  mining  claims  or  possessions  can  only  be  acquired  under 
the  provisions  of  law  regulating  the  disposal  of  mineral  lands  by 
parties  who  show  compliance  with  the  terms  of  the  mining  acts. 

Patents  issued  for  town  sites  in  mining  regions  contain  a 
clause  in  accordance  with  the  terms  of  the  law,  (Rev.  Stat.  Sec. 
2392)  under  these  provisions,  the  patents  for  town  sites  contain- 
taining  such  clause  are  held  subject  to  "  any  valid  mining  claim 
or  possession"  and  a  purchaser  of  a  lot  from  the  town-site 
authorities  holds  the  same  subject  to  the  same  conditions. 

In  accordance  with  this  view,  previous  instructions  were  recalled, 
and  it  was  decided  that  patent  might  issue  for  a  town-site  for 
the  premises  embraced  by  a  former  survey,  mine-owners  within 
the  town-site  entry  being  allowed  to  make  application  for  patents 
for  their  claims.1 

The  Government,  reserving  from  all  township  patents  all 
valid  mining  claims  or  possessions,  as  well  as  all  mines  of  gold, 
silver,  cinnabar,  or  copper,  has  the  right  to  dispose  of  such  re- 
served mines  and  possessions  to  parties  who  show  compliance 
with  the  terms  of  the  law  relating  to  the  disposal  of  mineral 
lands. 

1  Decision  of  Commissioner,  Nov.  23d,  1876,  3  Copp's  Land-owner,  131.  See 
In  re  Township  of  Butte,  Montana,  Decision  of  Commissioner,  October  27th, 
1876,  3  Copp's  L.  O.  114  ;  Ibid.  Decision  of  Commissioner,  August  19th,  1872, 
Copp's  U.  S.  M.  D.  135. 

W.  C— 20. 


306  HOMESTEADS    AND    TOWN    SITES.  §  222 

Where  a  company  had  shown  compliance  with  the  terms  of 
the  mining  act  from  the  date  of  the  location  of  their  claims  ; 
had  presented  proof  of  occupation  and  possession  of  the  prem- 
ises described  in  their  patent ;  had  given  public  notice,  by  pub- 
lication and  posting,  in  the  manner  and  for  the  length  of  time 
required  by  laAv,  of  their  intention  to  apply  for  a  patent ;  and, 
in  short,  had  filed  such  proofs  of  compliance  with  the  law  and 
instructions  as  are  required  previous  to  the  issuance  of  a  patent, 
it  appeared  that  a  portion  of  this  mining  claim  was  situated 
within  the  exterior  boundaries  of  the  town  site  of  Silver  City, 
Nevada  ;  but  as  no  title  can  be  acquired  by  virtue  of  a  town-site 
patent  "  to  any  mine  of  gold,  silver,  cinnabar,  or  copper,  or  to 
any  valid  claim  or  possession  held  under  ■  existing  laws,"1  and 
no  error  being  found  in  the  patent,  and  it  being  legally  issued, 
the  Office  refused  to  recall  it.2 

§  222.  Conflicts  between  mineral  and  town-site  claim- 
ants.— In  making  and  approving  town-site  entries,  patents  will 
issue  therefor  in  due  course,  but  with  the  proviso  above  men- 
tioned. The  Land  Office  is  not  vested  with  a  discretionary  au- 
thority in  the  matter  of  the  disposal  of  the  public  lands.  It  can 
neither  grant  without  express  authority  of  law,  nor  can  it  limit 
or  qualify,  by  form  of  conveyance,  the  substance,  conditions,  or 
extent  of  the  subject-matter  granted,  save  as  the  same  may  be 
authorized  to  be  done  by  express  legislation.  The  proviso  above 
quoted  embraces  by  recitation  and  reference  all  that  Congress 
has  seen  fit  to  enact  by  way  of  qualification  in  the  matter  under 
consideration,  contains  all  of  that  to  which  appeal  can  be  had, 
should  the  Courts  be  applied  to  for  the  settlement  of  conflicting 
claims,  and  must  therefore  be  held  to  be  the  limit  of  executive 
authority. 

The  town-site  laws  clearly  contemplate  that  towns  will  exist 
in  mining  localities  ;  by  clear  implication,  town-site  entries  are 
to  be  permitted  on  mineral  lands.  This  is  indicated  by  the 
clause  excepting  title  to  mines  from  the  title  acquired  by  the 
town.      It  is  inevitable  that  where  the  surface  is  suitable,  it  will, 

i  Rev.  Stat.  r.  s.  2392. 

-  In  re  South  Comstock  <;.  &  S.  M.  <;<>.,  Decision  of  Commissioner,  December 
29th,  1875,  2Copp'fl  Land-owner,  147. 


§  222  HOMESTEADS    AND   TOWN   SITES.  307 

in  a  mining  vicinity,  be  populated,  and  attain  the  character  of  a 
town  or  city.  Where  any  branch  of  business  nourishes,  there 
capital  and  population  will  concentrate.  The  various  trades 
and  callings  will  center  there.  Hotels  will  be  a  necessity. 
Dwellings  will  be  built,  and  permanent  homes  established ;  all 
the  various  interests  which  constitute  valuable  property  rights 
as  connected  with  the  soil  will  be  created.  And  this  is  not 
necessarily  antagonistic  to  the  miners.  The  protection  of  muni- 
cipal government  is  in  the  miner's  interest,  as  it  is  in  the  interest 
of  any  other  class  of  business  men. 

In  the  case  of  Theodore  II.  Becker  v.  Citizens  of  Central 
City,  Colorado,  Becker  was  a  mineral  claimant  to  3,000  linear 
feet  of  the  Gunnel  Extension,  or  White  Lode,  under  Act 
of  July  26th,  1866.  He  claimed  compliance  with  law,  and 
was  opposed  by  certain  citizens  of  the  town,  who  represented 
that  the  lode  extended  to  a  considerable  distance  under  town 
lots  and  improvements,  owned  and  occupied  by  them  in  said 
city.  In  this  case  the  Secretary  of  the  Interior  decided,  August 
7th,  1871,  that  "  in  the  present  case  the  application  for  a  patent 
includes  the  surface  and  soil  as  well  as  the  mineral.  I  am  of 
the  opinion  that  the  persons  in  possession  of  this  surface  are 
adverse  claimants  within  the  meaning  of  this  law,  and  are  enti- 
tled to  be  heard  in  the  local  Courts  before  a  patent  is  issued." 
The  exception  in  the  mining  patents,  for  claims  within  the 
exterior  limits  of  a  town,  having  in  view  the  legality  of  the 
possession  of  the  surface  ground  by  the  inhabitants,  is  as  follows, 
to  wit :  "  Excepting  and  excluding,  however,  from  these  presents, 
all  town  property  rights  upon  the  surface,  and  there  are  hereby 
expressly  excepted  and  excluded  from  the  same  all  houses, 
buildings,  and  structures,  lots,  blocks,  streets,  alleys,  or  other 
municipal  improvements  on  the  surface  of  the  above  described 
premises,  not  belonging  to  the  grantees  herein,  and  all  rights 
necessary  or  proper  to  the  occupation,  possession,  and  enjoyment 
of  the  same."  The  Commissioner  said :  "  By  this  exception, 
the  surface  in  the  actual  possession  and  occupation  of  the  mine- 
owner,  or  covered  by  his  improvements,  is  as  distinctly  assured 
and  conveyed  to  him  as  is  that  surface  to  which  town  property 
rights  have  attached,  or  on  which  improvements  by  other  parties 
have  been  placed  excepted  from  his  patent.     These  correlative 


308  HOMESTEADS    AND   TOWN    SITES.  §  222 

exceptions,  inserted  in  the  town-site  and  mineral  patents,  secure 
the  objects  contemplated  in  the  town  site  and  mineral  laws.  They 
assure  to  all  parties  just  what,  under  the  law,  they  are  respect- 
ively entitled  to  claim.  To  grant  to  the  miner  the  entire  surface 
ground,  along  the  whole  line  of  the  lode,  with  the  prescribed 
width,  without  regard  to  the  acquired  surface  rights  of  others, 
would  be  to  ignore  the  principle  announced.  The  two  laws 
must  be  so  construed  that  both  may  stand.  Under  the  sys- 
tem established  of  inserting  exceptions  in  the  patents  to 
towns  and  mine-owners,  there  were  no  occupants  in  Central 
City  presenting  their  claims  adversely  in  the  manner  provided 
in  the  mining  statutes,  and  for  the  reason  that,  by  said  excep- 
tions, the  rights  of  all  parties  are  respected  and  so  defined  that 
they  are  easily  susceptible  of  definite  ascertainment.  To  except 
from  the  town  patent  definite  surveys  of  mineral  claims,  initia- 
ted or  extended  after  surface  occupation  by  other  parties,  would 
obviously  be  ignoring,  to  an  unjustifiable  extent,  adverse  rights 
which  have  not  been  presented  for  adjustment  by  the  Courts 
prior  to  the  mineral  entry,  simply  for  the  reason  that  under  the 
practice  of  the  Office,  indicated  by  said  exceptions,  it  was  wholly 
unnecessary.  This  non-action  was  based  on  the  practice  of  the 
Office,  on  which  they  had  the  right  to  rely,  and  no  power  to 
control ;  and  this  practice  itself  was  based  on  the  reasonable  and 
essentially  necessary  construction  of  the  town-site  and  mineral 
laws,  whereby  both  might  be  executed  and  claimants  under 
them  secured  in  such  rights  as  they  had  respectively  acquired. 
It  should  also  be  remembered,  in  this  connection,  that  the  Gov- 
ernment does  not  act  upon  the  individual  claims  of  town  occu- 
pants, but  does  adjust  and  patent  mineral  claims  directly  to  the 
mine-owners.1 

"  The  request  of  the  mineral  claimants,  however,  as  presented 
in  their  protest  and  claim  now  under  consideration,  constitutes  a 
proposition  never  hitherto  before  this  Office  for  decision.  It  is, 
in  brief,  that  every  mine  discovered,  or  7iereafter  to  be  discovered, 
throughoul  its  entire  length,  with  a  width  of  one  hundred  feet, 
surface  ground  included,  be  excepted  from  the  town  patent. 

"  Where  and  when  will  these  mines  be  discovered  and  opened? 

1  Decision  of  Commission'  -,  !><<•.  U."«l,  1875,  2  Copp'fl  Land-owner,  150. 


§  222  IIOMESTEADS    AND    TOWN    SITES.  309 

What  and  whose  property  will  they  then  embrace  and  practi- 
cally confiscate  ?  What  foot  of  surface  ground  will  ever  be 
held  by  a  town  occupant  under  a  clear  title  where  the  same  is 
not  purchased  from  the  mine-owner  ?  Was  the  mineral  law  de- 
signed by  Congress  as  a  repeal  of  the  town-site  statutes  ?  These 
points  would  assume  vital  significance  were  the  present  claim 
conceded. 

"  The  town  of  Central  City  was  incorporated  in  1864.  The 
first  patents  were  issued  to  mine-owners  in  1869.  Precisely  ivhen 
mining  claims  attached  to  any  particular  piece  of  ground  I  can- 
not determine.  Precisely  token  a  legal  surface  claim  by  a  town 
occupant  attached  to  any  particular  lot  I  have  no  means  of 
ascertaining.  How,  then,  with  deference  to  those  laws  under 
which  these  claims  have  attached,  can  I  defer  the  one  absolutely 
to  the  other? 

"  The  necessity  of  so  construing  both  laws  as  not  to  defeat 
either — that  respect  for  rights  under  each,  which,  of  itself,  seems, 
must  control  my  action — the  fact  that  the  exceptions  in  mineral 
patents  secure  a  shield  of  protection  to  town  occupants  and 
mineral  claimants  alike,  and  on  which  town  occupants  have  re- 
lied, and  that  the  exception  in  the  town-site  patent  is  as  broad  as 
the  law  succ^ests,  and  almost  in  its  exact  lansmao'e — render  it 
improper  for  me  to  grant  the  present  claim. 

"  The  mine-owner  is  protected  by  the  local  rules  and  customs, 
and  these  are  recognized  by  the  United  States.  The  town  patent 
is  executed  to  a  trustee,  who  is  controlled  by  the  legislature  of 
his  State  or  Territory.  The  local  Courts  are  open  for  those 
particular  adjustments  which  this  Office  cannot  reach ;  and  I 
conclude  that  the  present  demand  is  entirely  outside  what,  in 
the  proper  execution  of  said  laws,  can  be  legitimately  claimed 
or  conceded.  I  therefore  decline  to  grant  the  application  ;  and 
in  conformity  to  the  views  herein  set  forth,  I  hereby  revoke  my 
letters  to  the  register  and  receiver,  of  August  26th,  1874,  and  to 
John  A.  Dix,  Esq.,  of  April  24th,  1875,  so  far  as  they  conflict 
with  this  decision,  and  decline  to  except  by  name  and  survey 
any  mine  whatever  in  said  town."  1 

1  See,  generally,  Provisions  as  to  Town  Sites,  Eev.  Stats.  2380, ,  2394;  See 

Instructions,  Copp's  Pub.  L.  L.  678,  679,  680,  700;  Effect  of  Deed  under  Congres- 
sional Town-site  Act:  Tread  way  v.  Wilder,  8  Nev.  92;  S.  C.  9Nev.  67. 


310  MINERAL    AND    AGRICULTURAL    LANDS.         §§  223-4 


CHAPTER  XVI. 

SEGREGATION     OF     MINERAL    AND    AGRICULTURAL     LANDS - 
WITHDRAWAL   FROM    AGRICULTURAL    ENTRY. 

§  223.   Manner  of  setting  apart  mineral  lands  as  agricultural. 

§  224.  Segregation  of  agricultural  from  mineral  lands. 

§  225.   Mineral  affidavits. 

§  226.  Mineral  affidavits  on  timber  land. 

§  227.    Segregation  under  Acts  of  1866  and  1870. 

§  228.   Withdrawal  of  certain  lands  from  agricultural  entry. 

§  229.   Surveyors'  returns. 

§  230.  Their  prima  facie  accuracy. 

§  231.   Hearings  to  determine  the  character  of  land — Publication. 

§  232.   What  is  mineral  land. 

§  233.  Burden  of  proof. 

§  234.   Evidence  as  to  agricultural  character  of  land. 

§  235.   The  testimony. 

§  236.   Proof  as  to  mineral  character  of  land. 

§  237.   Discovery  of  mines  on  agricultural  lands. 

§  238.   Agricultural  patent  covering  miiles  already  worked. 

§  239.   Fraud  in  pre-emption  entry. 

§  240.   Compromises  between  miners  and  settlers. 

§  241.   Attempt  by  railroad  to  disprove  mineral  character  of  lands. 

§  242.   Non-mineral  proof  by  settlers  on  lands  within  railroad  limits. 

§  223.  Manner  of  setting  apart  mineral  lands  as  agri- 
cultural.— Section  2042  of  the  IT.  S.  Revised  Statutes  reads : 
"  Upon  the  survey  of  the  lands  described  in  the  preceding 
section^  the  Secretary  of  the  Interior  may  designate  and  set 
aparl  such  portions  of  the  same  as  are  clearly  agricultural 
Lands,  which  lands  shall  thereafter  be  subject  to  pre-emption  and 
Bale  as  Other  public  land-,  and  be  subject  to  all  the  laws  and 
regulations  applicable  to  the  same."  ' 

§  224.  Segregation  of  agricultural  from  mineral  lands, 
for  sale  and  pre-emption. — It  was  apparently  the  intention 
of   this  section  to  throw  a  quantity  of  land  open  to  pre-emp- 

i  Bev.  State.  2342,  Sec.  11,    \<t   L866;  N  CJ.  S.  Stats.  263.    See  I  lev.  Stats.  2341, 
2406. 


MINERAL  AND  AGRICULTURAL  LANDS.         311 

tion  which  had  been  under  the  restrictive  system  reserving  min- 
eral lands  considered  aa  mineral.1 

§  225.  Mineral  affidavits. — Under  the  early  instructions 
issued  in  1868,  the  Surveyors-General  in  the  mining  States  and 
Territories  were  instructed  to  require  their  deputies  to  describe 
in  their  field-notes,  and  designate  on  township  plats,  such  lands 
as  were  agricultural.  After  the  filing  of  the  plats  in  the  district 
land  offices,  if  no  counter  affidavits  were  presented,  the  tracts 
designated  "  agricultural  lands  "  might  have  been  filed  upon 
under  the  pre-emption,  or  taken  under  the  homestead  laws  ;  but 
pre-emptors  were  not  permitted  to  prove  up  and  enter  until 
after  such  a  period  of  actual  settlement  and  cultivation  as 
showed  good  faith — say  not  less  than  six  months  from  the 
date  of  settlement  embraced  in  the  filing  of  the  declaratory 
statement ;  and  if  before  the  expiration  of  such  time,  an  affi- 
davit was  filed  alleging  the  mineral  character  of  the  particular 
tract  claimed,  a  trial  was  to  be  had  before  entry  made  to  de- 
termine the  question.2 

Affidavits  alleging  particular  lands  to  be  more  valuable  as 
mineral  than  as  arable  were  required  to  apply  to  each  of  the 
smallest  legal  subdivisions.  Of  a  quarter-section,  120  acres 
may  be  mineral  and  the  remaining  forty  acres  arable,  and  the 
mineral  character  of  the  former  is  no  reason  why  the  latter 
should  not  be  entered  as  agricultural.  Nor  was  it  sufficient  that 
such  affidavits  Avere  based  upon  opinion  or  belief.  They  were 
required  to  contain  a  statement  of  facts  within  the  knowledge 
of  deponents,  derived  from  actual  observation  or  examination, 
furnishing  a  strong  presumption  that  the  particular  subdivision 
was  mineral  land,  and  more  valuable  as  such  than  as  agricul- 
tural. Mere  speculation,  based  upon  no  positive  knowledge  and 
disclosing  no  material  facts,  was  not  received,  and  claimants 
were  not  to  be  put  to  the  trouble  and  expense  of  meeting  affida- 
vits of  this  character.  The  utmost  good  faith  was  required 
from  both  sides.  Lands  more  valuable  for  mineral  than  for 
other  purposes  were  not  to  be   taken  under  the  pre-emption  or 

1  Yale's  Mining  Claims,  282. 

2  Instructions  May  lGth,  1868,  Zabriskie's  Land  Laws,  20S;  Copp's  U.  S.  Mining 
Decisions,  248. 


312        MINERAL  AND  AGRICULTURAL  LANDS.       §  226 

homestead  laws ;  nor  on  the  other  hand  were  parties  to  be  in- 
timidated from  making  settlements  upon,  and  ultimately  enter- 
ing under  these  laws,  such  lands  as  were  most  useful  for  agri- 
cultural purposes,  simply  because  valuable  mineral  lands  might 
lie  in  the  immediate  vicinity.  Both  classes  of  land  were  to  be 
disposed  of  under  their  appropriate  laws,  and  neither  interest 
to  be  subordinated  to  the  other,  to  the  detriment  of  the  public 
welfare.1 

§  226.  Mineral  affidavits  on  timber  land. — If  the  land 
officers  in  the  various  districts  had  reason  to  believe  that  mineral 
affidavits  were  being  placed  on  timber  land  on  which  no  mineral 
had  been  found,  for  the  purpose  of  keeping  the  same  from  settle- 
ment until  after  the  timber  had  been  removed,  they  were  ordered 
to  inform  the  parties  filing  such  papers  that  affidavits  in  which 
it  was  not  alleged  that  either  gold,  silver,  cinnabar,  or  copper 
had  been  found  were  insufficient ;  and  however  specific  and  full 
such  affidavits  might  be,  they  were  not  to  be  deemed  conclusive 
as  to  the  matters  alleged.  Any  settler  filing  an  affidavit  of  a 
contrary  character,  and  desiring  to  enter  the  particular  tract  as 
agricultural  land,  was  entitled  to  have  the  question  examined, 
and  on  proving  it  to  be  more  valuable  as  arable  than  as  mineral, 
could  file  upon  it  under  the  pre-emption  or  enter  it  under  the 
homestead  law,  and  in  due  time  consummate  the  title. 

It  mattered  not  whether  the  previous  metals  were  found  in 
quartz  ledges,  or  in  placer  or  hydraulic  mines  :  if  the  particular 
subdivisions  of  the  public  lands  containing  them  were  more 
valuable  for  mining  than  for  agriculture,  they  could  not  be 
entered  under  the  pre-emption  or  homestead  law.  If  placers, 
once  valuable,  had  become  exhausted,  so  as  no  longer  to  be 
valuable  as  mines,  the  land  might  then  be  entered  as  arable.2 

These  affidavits  were  to  be  filed  with  the  register,  and  copies 
transmitted  to  tint  General  Land  Office.  They  were  required  to 
In-  registered  and  carefully  filed,  but  it  was  not  necessary  to  re- 
cord   1  lxiii.      All  witnesses  were  to  be  carefully  cross-examined, 

1  [nstructions  May  16th,  1868;  Zabriskic\s  Land  Laws,  208;  Copp's  U.  S.  Min- 
ing Deci  Ion     248. 

z  Instructions  May  16th,  1868,  Zabriskie's  Land  Laws,  208;  Copp's  U.  S. 
Mining  I  "i )i 


§  227  MINERAL    AND    AGRICULTURAL    LANDS.  313 

in  order  to  elicit  the  truth,  and  the  testimony,  with  the  papers  in 
each  case,  together  with  the  joint  opinions  of  the  district  land 
officers,  transmitted  to  the  General  Land  Office  for  examination 
and  review.1 

In  order  to  enable  the  Department  properly  to  give  effect  to 
this  section  of  the  law,  the  Surveyors-General  were  ordered  to 
describe  in  their  field-notes  of  surveys,  in  addition  to  the  data 
required  to  be  noted  in  the  printed  Manual  of  Surveying  In- 
structions, on  pages  17  and  18,  the  agricultural  lands,  and 
represent  the  same  on  township  plats  by  the  designation  of 
"Aoricultural  Lands."  2 

§  227.  Segregation  of  agricultural  from  mineral  land 
under  Act  of  1866-1870. — It  was  at  first  thought  that  under 
the  operation  of  this  law,  recognizing  ten-acre  lots  as  legal  sub- 
divisions of  the  public  lands  in  mining  regions,  much  of  the 
difficulty  theretofore  experienced  in  proving  the  mineral  or  non- 
mineral  character  of  lands  might  be  obviated.  It  had  been 
necessary  to  file  mineral  affidavits  on  each  forty-acre  tract,  that 
being  the  smallest  legal  subdivision  of  public  lands  ;  and  to  dis- 
prove the  mineral  character  of  lands  so  filed  upon,  it  had  been 
necessary  to  establish  the  fact  that  such  forty-acre  tract  was  as 
a  whole  more  valuable  for  agricultural  than  for  mining  pur- 
poses. This  it  was  often  found  impossible  to  do,  for  the  reason 
that  although  parties  could  be  readily  produced  to  testify  to  the 
fact  that  one-half  or  perhaps  three-fourths  of  a  given  tract  was 
only  fit  for  farming,  yet  inasmuch  as  a  small  fraction  of  the 
land  was  intersected  by  a  gulch,  ravine,  or  quartz  lode  yielding 
mineral,  the  value  of  which  deposit  there  was  no  definite  means 
of  ascertaining,  the  deponents  would  be  unable  to  testify  that 
the  entire  forty-acre  subdivision  was  of  greater  value  for  farm- 
ing than  for  mineral  purposes.  In  this  way,  although  thirty  and 
even  thirty-fivre  acres  in  a  forty-acre  tract  might  be  shown  to 
contain  no  mineral  whatever,  or  none  in  quantities  sufficiently 
abundant  to  be  remunerative  to  the  miner,  yet  on  account  of  the 
known  mineral  character  of  a  small  fragment  of  the  land  the 

1  Instructions  May  loth,  18G8,  Zabriskie's  Land  Laws,  208;  Copp's  U.  S.  Mining 
Decisions,  248.  As  to  fees  authorized  in  pre-emption  and  homestead  cases,  see 
Instructions  Sept.  17th,  18G7. 

2  Instructions  Jan.  11th,  1867,  Copp's  U.  S.  Mining  Decisions,  239. 


314  MINERAL    AND    AGRICULTURAL    LANDS.  §  227 

bona  fide  agriculturist  had  been  debarred  from  securing  a  title 
to  his  land,  at  least  to  the  extent  of  that  forty-acre  tract.  For 
these  reasons,  the  local  officers  were  ordered  May  6th,  1871, 
when  an  application  was  filed  to  enter  land  as  agricultural 
which  had  been  returned  by  the  United  States  deputy  sur- 
veyor as  mineral,  or  upon  which  mineral  affidavits  had  been 
filed,  to  publish  at  the  expense  of  the  applicant  a  notice  of  such 
application  for  thirty  consecutive  days,  in  a  newspaper  of  gen- 
eral circulation,  published  nearest  to  the  land  in  question,  or  if 
in  a  weekly  paper,  for  five  consecutive  weeks,  giving  the  name 
and  address  of  the  applicant ;  the  designation  of  each  forty-acre 
tract  covered  by  the  application,  the  names  of  any  miners  or 
mining  companies  whose  claims  were  upon  the  hind,  the  names 
of  the  parties  who  filed  the  mineral  affidavits,  and  when  such  fil- 
ing was  made,  and  finally  the  notice  named  a  day,  after  the 
thirty  days  had  expired,  upon  which  a  hearing  was  had  before 
the  register  and  receiver  to  determine  the  facts  as  to  the  mineral 
or  non-mineral  character  of  the  land,  when  such  witnesses  as 
might  be  brought  by  the  parties  in  interest  were  to  be  examined 
and  their  testimony  reduced  to  writing  ;  and  the  depositions  of 
such  witnesses  as  were  unable  to  be  present,  whether  from  dis- 
tance, infirmity,  or  other  good  cause,  Avere  received  and  exam- 
ined ;  after  which,  the  proceedings  were  submitted  to  the  Com- 
missioner of  the  General  Land  Office  for  review,  prior  to  a  final 
award  of  the  land.  A  copy  of  this  notice  was  posted  in  a  con- 
spicuous place  upon  each  forty-acre  tract  embraced  in  the  ap- 
plication, for  the  period  of  thirty  consecutive  days  ;  proof  of 
which  was  required  on  the  day  of  the  hearing  by  the  sworn 
statements  of  at  least  two  witnesses,  one  of  whom  might  be  the 
applicant,  the  deponents  to  stale  where  the  notice  was  posted, 
the  date  of  the  posting,  and  how  long  continued,  and  a  copy  of 
the  printed  notice  was  to  be  also  filed,  with  the  publisher's  affi- 
davit attached,  stating  when  the  notice  was  first  published,  and 
for  how  long. 

In  every  case  where  practicable,  in  addition  to  this  publica- 
tion and  posting,  personal  notice  was  required  to  be  served  in 
the  USUa]  manner  upon  the  parties  who  filed  the  mineral  affida- 
vits, and  upon  those  who  were  actually  engaged  in  mining  upon 
the    land:    on     the     day    of    hearing,    the    witnesses    were    to    be 


§  228      MINERAL  AND  AGRICULTURAL  LANDS.        315 

examined  by  the  register  and  receiver,  with  the  view  of  elicit- 
insr  the  truth  as  to  the  mineral  or  non-mineral  character  of  the 
land ;  and  in  cases  where  it  was  established  that  a  portion  of  the 
land  in  a  forty-acre  tract  was  mineral,  and  the  remainder  agri- 
cultural, the  testimony  was  required  to  be  of  a  nature  clearly 
showing  what  particular  portion  or  portions  of  the  land  were 
actually  covered  by  placer  or  quartz  claims,  or  used  in  connec- 
tion therewith,  and  fixed  by  local  customs  or  rules  of  miners  ; 
and  it  was  suggested  that  if,  prior  to  such  hearing,  the  respect- 
ive parties  could  come  to  an  agreement  as  to  the  proper  bound- 
aries of  the  mineral  and  agricultural  lands,  in  the  same  forty- 
acre  tract,  they  file,  on  the  day  of  hearing,  a  diagram  and 
description,  showing  in  what  portions  of  the  tract  such  mines 
and  grounds  used  in  connection  therewith  existed,  stating 
whether  the  same  Avere  placers,  or  vein  or  lode  claims,  by  way 
of  assisting  the  officers  in  the  discharge  of  their  duties.1 

Where  the  applicant  claimed  the  pre-emption  right  to  the 
land  filed  upon,  at  the  hearing  all  the  customary  proof  was 
exacted,  usual  in  cases  of  pre-emption  contests,  as  required 
by  the  law  and  the  instructions.  The  same  rule  applied  to 
homestead  applicants. 

After  the  hearing,  all  the  papers  and  testimony  were  to  be 
transmitted,  together  with  the  joint  opinion  of  the  register 
and  receiver,  to  the  Commissioner  of  the  General  Land  Office, 
for  review.  In  cases  where  a  survey  was  necessary,  to  set 
apart  the  mineral  from  the  agricultural  land,  in  any  forty-acre 
tract,  the  necessary  instructions  were  issued  to  enable  the  agri- 
cultural claimant,  at  his  own  expense,  to  have  the  work  done, 
at  his  option,  either  by  United  States  deputy,  county,  or  other 
local  surveyor,  under  the  16th  Section,  Act  of  1870.2 

§  228.  Segregation  of  mineral  and  agricultural  lands, 
June  17th,  1872. —  Large  quantities  withdrawn  from  agricul- 
tural entry  till  proof  given  of  their  non-mineral  character. — 
Prior  to  November,  1871,  the  practice  had  prevailed  of  allowing 
pre-emption  and  railroad  rights  to  attach  to  lands  in  the  mineral 
region,    when    the    same    were  returned  by    the    surveyors    as 

1  Instructions  MayGtk,  1871,  Copp's  U.  S.  Mining  Decisions,  261. 

2  Ibid. 


316        MINERAL  AND  AGRICULTURAL  LANDS.       §  228 

agricultural  land,  without  making  an  investigation  as  to  the 
correctness  of  such  return,  unless  affidavits  were  filed  alleging 
the  tracts  to  be  mineral.  By  reason  of  erroneous  and  false 
returns  by  the  surveyors,  patents  were  issued  conveying  valua- 
ble mining  premises  as  agricultural  land,  which  never  would 
have  been  done  if  the  land  had  been  properly  returned  by  the 
surveyors,  the  grants  generally  expressly  excepting  and  exclud- 
ing all  mineral  lands  except  those  containing  coal  or  iron. 

In  consequence  of  numerous  frauds  practiced  upon  the 
Department,  the  Commissioner  of  the  General  Land  Office  at 
length  became  impressed  with  the  conviction  that  it  was  neither 
in  harmony  with  the  spirit  or  intent  of  the  laws  of  Congress, 
nor  with  true  public  policy,  to  sanction  the  indiscriminate 
absorption  of  the  lands,  in  what  had  theretofore  been  known  as 
the  reserved  mineral  belt  in  the  public  domain,  under  laws  only 
applicable  to  lands  clearly  non-mineral,  simply  because  the 
deputy  surveyors  failed  to  return  the  same  as  mineral  in  char- 
acter, especially  as  the  majority  of  mineral  patents  were  found, 
upon  consulting  the  official  township  plats,  to  be  within  subdi- 
visions not  reported  as  mineral  in  character.  In  many  of  the 
hearings  had  before  the  local  officers,  to  determine  the  true 
character  of  those  tracts,  the  testimony  showed  conclusively 
that,  of  a  whole  quarter  or  half  quarter-section  sought  to  be 
entered  under  the  pre-emption  law,  the  only  portion  really 
agricultural  in  character  was  confined  to  two  or  three  acres 
upon  which  the  pre-emption  party  had  a  house  and  garden,  the 
agricultural  utility  of  the  remainder  consisting  in  its  adaptability 
to  grazing  cattle.  The  mere  fact  that  an  individual  used  one 
..I'  these  isolated  garden  spots,  situate  in  an  imperfectly  devel- 
oped mineral  region,  as  a  homestead  or  ranch,  was  not  finally 
considered  by  the  Commissioner  as  investing  the  settler  with 
an  equitable  right  to  a  Grovernment  title  to  an  entire  quarter- 
section  of  hmd,  the  real  mineral  character  of  which  had  not 
been  tested,  or  at  all  events  not  sufficiently  to  enable  parties  to 
tell  with  any  ccrtaint  v  whether  the  land  contained  valuable 
mine-  or  not. 

When  a  bona  I'nle  agricultural  claimant  desired  the  segre- 
gation of  ih«'  ground  containing  his  improvements  from  the 
adjoining  mineral  land,  he  could  have  the  same  effected  under 


§  223      MINERAL  AND  AGRICULTURAL  LANDS.         817 

existing  circular  instructions.  From  the  fact  that  but  few  of 
these  pre-emption  claimants  appeared  disposed  to  avail  them- 
selves of  the  privilege  of  this  segregation,  the  inference  was, 
that  it  was  not  so  much  on  account  of  the  agricultural  value 
of  the  tract  as  of  its  probable  mineral  deposits,  that  title  was 
desired. 

To  illustrate  the  correctness  of  these  views,  it  was  shown  that 
in  Nevada  County,  California,  the  length  of  the  county  from 
east  to  west  was  about  sixty-five  miles,  having  an  average 
breadth  of  twenty,  and  containing  about  1,300  square  miles. 
It  is  near  the  middle  of  the  great  gold  region  that  stretches 
along  the  westerly  slope  of  the  mountain  chain,  extends  entirely 
across  the  auriferous  belt,  and  in  the  preceding  nineteen  years 
had  produced  more  gold  than  any  tract  of  country  of  equal 
extent  in  the  world. 

The  deep  placer  or  hill  diggings,  in  the  channels  of  ancient 
streams,  in  many  places  underlying  hundreds  of  feet  of  alluvial 
deposits  and  volcanic  material,  were  almost  inexhaustible.  No 
estimate  approaching  to  accuracy  could  be  made  of  the  amount 
of  gold  contained  in  the  placer  mines  of  that  county,  and  which 
might  still  be  extracted.  In  some  of  the  deep  placers,  deposits 
of  gold,  it  was  thought,  might  be  found  in  such  quantities  as 
would  materially  diminish  the  value  of  the  metal.  The  extent 
and  value  of  the  gold-bearing  quartz  ledges  were  scarcely  of 
less  magnitude.1 

Notwithstanding  all  this,  Township  16  North,  Range  8  East, 
Mount  Diablo  Meridian,  embracing  the  towns  of  Grass  Valley, 
Gold  Hill,  and  part  of  Nevada  City,  all  in  the  heart  of  this  rich 
mining  district,  was  not  returned  on  the  official  plat  of  the 
township,  as  to  any  portion  of  it,  as  mineral  in  character,  nor 
was  any  portion  segregated  from  the  agricultural  portion  as 
required  by  the  law  and  the  instructions. 

After  the  survey  and  return  of  the  township,  numerous  con- 
tests arose  between  the  miners  and  the  pre-emption  claimants, 
as  regarded  the  character  of  the  land,  and  several  applications 
were  made  and  titles  issued  for  mines  therein,  no  intimation  of 
the   existence   of  which  was  given,  however,  upon  the  official 

1  Official  Report  of  J.  Ross  Browne  to  the  Secretary  of  the  Treasury,  March 
5th,  1868. 


318 


MINERAL    AND    AGRICULTURAL    LANDS. 


228 


plat  of  the  township.  A  gold  quartz  claim,  yielding  $49,000 
per  month,  was  situated  in  a  quarter-section  of  the  township,1 
and  yet  the  tract  was  not  shown  by  the  plat  to  contain  any 
mineral  land  or  claim  whatever.  The  widely-known  Ophir 
Hill,  or  Empire  Mine,  near  the  town  of  Grass  Valley,  was  in 
Section  35  of  said  township.  This  mine  had  been  worked  since 
1852,  had  had  $250,000  expended  in  improvements  thereon,  and 
was  reported  to  have  yielded  nearly  $2,000,000  in  gold.  Yet 
the  plat  gave  not  the  slightest  indication  that  there  was  any 
such  mine  in  existence,  or  that  the  subdivision  in  which  it  lay 
was  other  than  agricultural  land.  Numerous  other  instances 
of  a  like  character  existed. 

In  other  townships  another  condition  of  things  existed.  In 
some  of  the  township  plats,  certain  of  the  subdivisions  were 
shaded  yellow,  and  designated  "  Mineral  Land,"  the  remainder 
being  designated  "Agricultural  Land."  On  inspection  of  some 
of  these  plats,  it  was  found  that  within  those  agricultural  tracts 
were  marked  "  Quartz  Ledges,"  "  Placer  Mines,"  "  Hydraulic 
Mines,"  etc.,  the  plat  thus  contradicting  itself.  Prior  to  the  Act 
of  1866,  this  mineral  region  had  been  excluded  from  survey 
and  sale  by  the  laws  of  Congress.  From  the  indefinite  nature 
of  the  returns  made  by  the  deputy  surveyors,  the  impracticabil- 
ity of  carrying  into  effect  the  eleventh  section  of  the  Act  of 
1866  2  became  at  once  apparent,  experience  having  shown  that 
little  reliance  could  be  placed  upon  those  plats  in  determining 
the  true  character  of  the  land.  To  set  apart  the  lands  clearly 
agricultural  from  such  data,  partook  for  the  most  part  of  the 
nature  of  guess-work. 

Public  considerations,  therefore,  induced  the  Commissioner  of 
tin-  General  Land  Office  to  ask  authority  for  withdrawing  from 
disposal  as  agricultural  lands,  such  townships  or  parts  of  town- 
ships  in  that  region  as  might  reasonably  be  presumed,  from 
common  report,  from  official  and  other  data,  to  be  properly 
classed  as  mineral  land,  and  that  no  entries  thereof  be  permitted 
except  by  legally  qualified  citizens  holding  mineral  claims,  in  ac- 
cordance  with    the   mining  statute,  except  in  cases  where  the 


1  Official  Report  of  J.  Ross  Browne  to  Secretary  of  the  Treasury,  March  5th, 
Rev.  Btal  -  2342. 


§  228       MINERAL  AND  AGRICULTURAL  LANDS.         319 

agricultural  character  should  first  be  established  by  competent 
testimony,  in  accordance  with  existing  regulations  applicable  to 
the  subject.1 

Accordingly,  authority  was  given  by  the  Secretary  of  the  In- 
terior to  the  Commissioner  to  make  the  necessary  withdrawal, 
and  to  instruct  the  local  officers  not  to  permit  any  of  the  tracts 
which  might  be  withdrawn  to  be  entered  as  agricultural  land, 
unless  the  non-mineral  character  of  the  same  should  have  been 
first  fully  and  clearly  established  by  competent  testimony.2 

Acting  under  this  authority,  and  stating  further  that  expe- 
rience had  shown  that  the  Office  could  not,  with  any  degree  of 
safety,  judge  of  the  character  of  the  lands  from  the  data  furn- 
ished by  the  returns,  and  there  being  no  authority  of  law  for 
the  employment  of  a  competent  geologist  to  investigate  the  mat- 
ter, the  head  of  the  Department  had,  in  consideration  of  the 
public  interests,  and  to  prevent  the  indiscriminate  absorption  of 
the  mineral  lands  of  the  public  domain  through  the  instrumen- 
tality of  insufficient  returns,  found  it  imperatively  necessary  to 
adopt  the  course  announced,  both  for  the  protection  of  the  par- 
ties who  had  already  expended  time,  capital,  and  labor  in  open- 
ing and  developing  mines,  and  those  of  the  citizens  of  the 
United  States  who  might  thereafter  desire  to  exercise  their  legal 
right  to  do  so,  the  Commissioner  designated  a  number  of  town- 
ships  as  within  the  order.3 

1  Letter  of  Commissioner,  November  24th,  1871,  Copp's  U.  S.  Mining  Decisions, 
297. 

2  Letter  of  Secretary  of  the  Interior,  November  24th,  1871,  Copp's  U.  S.  Mining 
Decisions,  301. 

3  Decisions  of  Commissioner,  December  2d,  1871 ;  December  7th,  1871 ;  January 
22d,  1872;  March  11th,  1872;  March  20th,  1872;  April  20th,  1872,  Copp's  U.  S. 
Mining  Decisions,  301,  302,  304,  311,  314. 

Note. — Mount  Diablo  base  and  meridian. — The  following  Townships  were 
included  in  the  order :  Township  1  North,  Ranges  11, 12, 13, 14,  and  15  East ;  Town- 
ship 2  North,  Ranges  11, 12, 13, 14,  and  15  East;  Township  3 North,  Ranges  10,  11, 
12,  and  13 East;  Township  4  North,  Ranges  10,  11,  12,  and  13  East;  Township  5 
North,  Ranges  10,  11,  and  12  East;  Township  G  North,  Ranges  10,  11,  12,  and  13 
East;  Township  7  North,  Ranges  9,  10,  11,  and  12  East;  Township  8  North, 
Ranges  9,  10,  11,  and  12  East;  Township  9  North,  Ranges  9,  10,  11,  and  12  East; 
Township  10  North,  Ranges  8,  9, 10, 11,  and  12  East;  Township  11  North,  Ranges 
6,  7,  8,  9,  10,  and  11  East;  Township  12  North,  Ranges  6,  7,  8,  9,  10,  and  11  East; 
Township  13  North,  Ranges  0,7,8,9,10,  and  11  East;  Township  14  North, 
Ranges  G,  7,  8,  9,  10,  and  11  East;  Township  15  North,  Ranges  G,  7,  8,  9,  10,  and 
11  East;  Township  1G  North,  Ranges  5,  G,  7,  8,  9,  10,  11,  12,  15,  10,  and  17  East; 
Township  17  North,  Ranges  5,  G,  7,  1G,  and  17  East ;  Township  18  North,  Ranges 


320        MINERAL  AND  AGRICULTURAL  LANDS.       §  228 

The  order  directing  the  Commissioner  to  suspend  from  dis- 
posal, as  agricultural  lands,  certain  townships  therein  designated, 
until  the  non-mineral  character  thereof  should  first  be  es- 
tablished by  competent  proof,  taken  at  a  hearing,  to  be  had 
after  due  notice,  was  subsequently  modified  with  respect  to 
entries  which  had  already  been  made  and  reported  to  the 
Office  before  the  instructions  of  December  2d,  1871,  were  issued, 
but  it  was  ordered  to  be  strictly  enforced  with  regard  to  all 
subsequent  applications. 

The  cases  which  had  been  reported  prior  to  the  date  of  the 
instructions  were  each  ordered  to  be  carefully  examined  in  its 
turn,  and  if,  from  the  facts  in  any  case,  further  hearing  or 
additional  proof  should  be  necessary,  the  proper  rulings  were 
to  be  made  in  each  individual  case.1 

It  being  objected  to  this  action  of  the  Department  that  it 
necessitated  additional  expense  and  delay,  and  that  the  real 
meaning  and  object  intended  to  be  conveyed  and  effected  by  the 
order  was  a  suspension  of  the  lands  in  question  from  settlement, 
and  a  denial  in  toto  of  the  right  of  any  settler  to  secure  title  to 
any  tract  whatever  within  the  suspended  townships,  the  persons 
objecting  omitting,  however,  to  consider  that  upon  making  proof 

4,  5,  G,  7,  16,  and  17  East;  Township  19  North,  Ranges  3,  4,  5,  G,  7,  16,  and  17 
East;  Township  20  North,  Ranges  3  and  4  East;  Township  21  North,  Ranges  3 
and  4  East;  Township  22  North,  Range  3  East;  Township  23  North,  Range 
3  East;  Township  24  North,  Range  4  East;  Township  1  South,  Ranges  12 
and  11  East;  Township  4  South,  Range  16  East;  Township  5  South,  Ranges  16 
and  17  East;  Township  G  South,  Range  18  East;  Township  7  South,  Ranges  17 
and  18  East;  Township  8  South,  Range  18  East;  Township  !>  South,  Range  18 
East;  Township  10  South,  Ranges 20 and  22  East;  Township  11  South,  Ranges 22 
and  23  East. 

Withdrawals  from  agricultural  entry  in  Colorado. — Under  instructions  of  No- 
vember 15th,  L875,  all  land  lying  within  the  Del  Norte  Land  District,  Colorado, 
•  :cep1  Townships  relieved  from  suspension  by  letter  of  June  15th,  1874)  were 
withheld  from  sale  as  agricultural  lands,  until  the  non-mineral  character  should 
be  established. 

Township  40  North,  Ranges  I,  5,  and  <>  Kasf,  X.  M.  M.,  were  also  reported  as 
mineral,  and  ordered  withheld  in  the  same  manner,  and  so  much  of  the  letterof 
June  15th,  L874,  as  relieved  those  Townships  from  suspension  wasrevoked.  The 
register  was  ordered,  in  ease  lie  became  satisfied  that  any  Township  or  pari  of  a 
Township  Included  was  clearly  agricultural,  to  report  the  fact  to  the  General 
Land  Offici  .  accompanying  his  report  with  the  sworn  statement,  of  parties  who, 
from  their  knowledge  of  the  land,  could  testily  understanding^  as  to  the  true 
character  of  the  land.  (Decision  of  Commissioner,  November  15th,  1875,  2 
(  npps  Land-owner,  130. ) 

>  Decision  Commissioner,  April  20th,  1872, Copp's  V.  S.  Mining  Decisions,  314. 


§  228       MINERAL  AND  AGRICULTURAL  LANDS.         321 

of  the  non-mineral  character  of  any  tract  so  suspended,  the 
settler's  rights  would  be  fully  recognized,  the  Department  sus- 
tained its  position  by  further  argument  and  proofs. 

The  Commissioner  called  attention  to  the  fact  that  Congress 
had,  from  its  earliest  legislation  in  reference  to  public  lands, 
made  a  distinction  between  lands  which  are  mineral  and  those 
which  are  not,  and  this  distinction  had  invariably  been  enforced 
in  every  public  land  law  enacted  by  that  body,  and  so  long  as 
the  legislative  branch  of  the  Government  saw  fit  and  proper  to 
specially  make  such  distinction,  the  executive  had  before  it  the 
plain  duty  of  enforcing  the  same,  and  was  without  power  under 
the  law  to  waive  it.1 

As  recited  in  a  previous  communication,  under  the  Act  of 
1866,  it  was  not  the  intention  of  the  latter  statute  to  abolish  or 
do  away  with  the  distinction  between  mineral  and  agricultural 
lands,  or  to  allow  mineral  lands  to  be  classed  and  disposed 
of  as  agricultural ;  but  it  simply  provided  that  the  public  sur- 
veys might  be  extended  over  a  region  that  was  so  clearly  min- 
eral in  character,  that  before  that  time  it  had  been  all  reserved 
for  mineral  purposes,  and  the  tract  that  should  appear  to  be 
clearly  agricultural  set  apart  for  disposition  under  the  laws 
relating  to  such  lands,  while  the  mineral  lands  should  be  still 
reserved  for  disposition  under  the  laws  relating  to  lands  of  that 
class,  the  Department  having  no  more  right  to  dispose  of  min- 
eral lands  in  large  tracts  than  it  had  before  the  enactment  of 
this  law.2 

Owing  to  the  fact  that  the  two  classes  of  land  in  the  mineral 
belt  are  so  interlaced  as  to  prevent,  in  most  cases,  their  segrega- 
tion by  the  rectangular  system  of  surveys,  the  proper  execution 
of  the  requirement  of  setting  apart  the  "  clearly  agricultural " 
portions,  is  one  of  the  greatest  difficulty,  and  in  many  cases  it 
is  almost  impossible.  During  the  lapse  of  ages  the  melting  of 
snows  and  washing  of  rains  have  had  the  effect  of  disinteo-ratimr 
the  cpiartz  lodes  or  other  auriferous  deposits  in  the  mountains, 
which  are  washed  down  into  the  valleys,  flats,  and  ravines,  the 
gold,  from  its  greater  specific  gravity,  settling  to  the  bottom  or 

1  Letter  of  Commissioner,  March  11th,  1872,  Copp's  U.  S.  Mining  Decisions,  301. 

2  Ibid. 

W.  C— 21. 


322        MINERAL  AND  AGRICULTURAL  LANDS.       §  228 

bed  rock  ;  these  deposits  forming  the  "  placers,"  or  "  diggings," 
some  of  which  are  quite  shallow  and  soon  exhausted ;  others 
again  being  very  deep,  and  overlaid  with  good  soil,  the  surface 
in  the  latter  case  being  "  clearly  agricultural,"  while  the  deposit 
underlying  the  same  is  of  such  a  character  as  to  render  the  land 
of  great  value  for  mineral  purposes.  Again,  there  exists  in  the 
State  of  California  what  are  called  "  Blue  Leads,"  "  Cement  "  or 
"  Gravel "  claims,  supposed  to  be  the  beds  of  ancient  river 
channels,  very  deep,  rich  in  gold,  and  practically  inexhaustible. 
These  immense  deposits  are  frequently  covered  to  a  depth  of 
from  fifty  to  one  hundred  feet,  the  surface  of  the  overlying  mass 
being  perhaps  tillable  land,  and  presenting  no  indication  what- 
ever of  the  valuable  underlying  deposit.  Arable  land  is  also 
sometimes  found  to  overlie  quartz  lodes,  the  existence  of  which 
may  not  have  been  known  at  the  time  the  settler  began  his  im- 
provements, but  were  afterward  discovered  by  prospecting  shafts 
or  otherwise,  by  miners,  who  thereupon  claimed  such  lodes,  under 
local  rules  and  customs,  together  with  a  sufficient  area  of  surface 
ground  for  the  convenient  working  of  such  mines.2 

But  aside  from  the  obstacles  growing  out  of  the  peculiar 
character  of  the  lands,  which  rendered  it  very  difficult,  even  with 
the  utmost  circumspection  and  care,  to  carry  out  the  intention  of 
Congress  and  prevent  the  disposition  of  mineral  lands  as  agri- 
cultural, it  had  been  found  that,  owing  to  the  grossly  careless, 
not  to  say  fraudulent,  manner  in  which  deputy  surveyors  exe- 
cuted their  work  in  the  field,  and  made  their  returns,  the  dis- 
tinction which  Congress  had  drawn  between  agricultural  and 
mineral  lands  was  not  observed,  and  whole  townships  containing 
the  richest  mineral  land  in  the  world,  including  well-known 
mines  which  had  been  worked  successfully  for  years,  and  which 
were  still  being  worked  successfully  and  profitably,  were  re- 
turned to  the  General  Land  Office  and  to  the  local  land  offices 
as  agricultural  land,  and  so  posted  on  the  tract-books,  and  be- 
came from  the  date  of  Mich  return  subject  to  sale  and  to  selec- 
tion by  railroads,  etc.,  as  agricultural  lands,  in  direct  violation 
of  the  plain  intent  of  Congress,  as  expressed  not  only  in  pre- 
vious Legislation,  but  in  the  very  act  under  which  these  lands 
were  surveyed  and  brought  into  market. 

1  Letter  of  i  lommissioner,  March  llth,  1872,  Copp's  U.S.  Mining  Decisions,  304. 


§  228       MINERAL  AND  AGRICULTURAL  LANDS.         ■)-'■) 

The  action,  therefore,  taken  by  the  Office  in  requiring  agricul- 
tural claimants  to  submit  satisfactory  proofs  as  to  the  non- 
mineral  character  of  the  lands  sought  to  be  entered  by  them, 
was  considered  imperatively  necessary  to  carry  out  the  will  of 
Congress,  clearly  and  repeatedly  expressed  in  regard  to  the  res- 
ervation of  mineral  lands  for  mineral  purposes. 

To  illustrate  the  unreliability  of  the  surveyors'  returns  as  to 
the  character  of  the  lands,  and  the  absolute  necessity  for  the 
rule  adopted,  the  names  and  locations  of  fifteen  gold  quartz 
claims,  six  other  quartz  claims,  and  thirteen  placer  claims,  all 
within  one  district,  were  given,  the  lands  embracing  which  were 
returned  on  the  official  township  plats  as  agricultural  in  charac- 
ter, the  existence  of  mines  therein  not  becoming  known  to  the 
Office  until  after  the  receipt  of  the  applications  for  mining 
titles.1 

The  rule  had  prevailed  that  upon  the  survey  of  these  reserved 
lands,  homesteads,  pre-emptions,  and  railroad  grant  rights  took 
effect  upon  all  such  lands  as  were  returned  by  surveyors  as 
"  agricultural,"  except  in  cases  where,  before  such  lands  were 
patented,  affidavits  were  filed  alleging  their  true  character  to  be 
mineral,  in  which  case  a  hearing  would  be  had  before  the  regis- 
ter and  receiver  to  determine  whether  the  tract  was  of  more 
value  for  mineral  than  for  agricultural  purposes,  mineral  lands 
being  expressly  excluded  from  land  grants  to  railroads,  and 
from  the  operation  of  the  pre-emption  or  homestead  laws. 

But  the  Commissioner  became  convinced  that  this  rule  failed 
to  afford  adequate  protection  to  the  miners  as  a  class,  or  prevent 
the  disposition  of  mineral  lands  as  agricultural.  It  was  ad- 
mitted that  parties  engaged  in  the  real  estate  business  or  in  land 
speculations,  and  who  were  therefore  well  informed  as  to  the 
regulations  governing  the  land  offices,  and  also  those  miners 
who  had  acquired  a  knowledge  of  the  reckless  manner  in  which 
returns  had  been  made  by  deputy  surveyors,  could  protect 
themselves  from  the  consequences  of  such  erroneous  and  false 
returns  by  making  affidavits  as  to  the  mineral  character  of  the 
lands  in  which  they  were  directly  interested,  and  filing  the  same 
with  the  register  and  receiver,  thus  necessitating  a  hearing  be- 

1  Letter  of  Commissioner,  March  11th,  1872,  Copp's  U.  S.  Mining  Decisions, 
SOL 


32-4  MIXER AL    AXD    AGRICULTURAL    LAXDS.  §  228 

fore  the  land  so  filed  on  could  be  disposed  of  as  agricultural ; 
but  inasmuch  as  the  law  does  not  provide  for  or  require  such 
affidavits  to  be  filed,  but  does  authorize  the  Secretary  of  the 
Interior,  when  the  surveys  are  made,  to  segregate  the  agricultu- 
ral from  the  mineral  lands  before  they  can  be  classed  or  dis- 
posed of  under  the  law  relating  to  agricultural  lands,  the  min- 
ers and  owners  of  mining  claims  had  a  right  to  suppose,  and 
the  great  mass  of  them  did  undoubtedly  suppose,  that  they  were 
protected  by  the  law  without  action  on  their  part ;  but  if  this 
had  not  been  so,  no  reason  was  perceived  why,  in  a  region  con- 
fessedly mineral,  and  in  which  Congress  had  seen  proper  to 
hold  all  lands  as  mineral  except  those  specially  designated  as 
agricultural  by  the  Secretary  of  the  Interior,  the  burden  of  fil- 
ing proof  as  to  the  character  of  the  land  should  be  imposed 
on  the  mineral  instead  of  the  agricultural  claimant.  If  a  mine 
should  be  discovered  in  a  region  where  agricultural  lands  pre- 
dominate, such  a  rule  would  be  reasonable  and  proper ;  but  in  a 
mineral  region  this  burden  of  proof  should  be  on  the  agricultu- 
ral claimant,  and  Congress  has  so  provided  in  effect  by  consid- 
ering and  treating  all  the  lands  as  mineral  which  have  not  been 
specially  designated  by  the  Secretary  of  the  Interior  as  agricul- 
tural. The  work  of  designating  and  setting  apart  agricultural 
lands  in  the  mineral  region  is  not  left  to  the  Surveyor-General, 
nor  even  to  the  Commissioner  of  the  General  Land  Office,  but 
is  by  the  statute  thrown  upon  the  Secretary  of  the  Interior  ;  and 
therefore,  according  to  the  most  liberal  construction,  the  disposi- 
tion of  these  lands  as  agricultural,  under  the  rule  previously 
prescribed,  was  by  the  Commissioner  declared  unauthorized  and 
illegal,  March  11th,  1872.1 

But,  admitting  the  propriety  and  legality  of  the  proceedings 
under  these  mineral  affidavits,  they  did  not  prevent  the  mineral 
lands  from  being  disposed  of  as  agricultural,  except  in  special 
cases  where  contests  arose  between  parties  claiming  adversely. 
Wli' ire  the  mineral  and  agricultural  interests  are  both  vested  in 
the  same  person  or  persons,  the  lands  will  be  taken  as  agricultu- 
ral, unless  the  parties  in  interest  are  required  to  give  notice  and 
submit  proof  under  oath  as  to  the  non-mineral  character  of  the 
land. 

1  Letter  of  Commissioner,  March  l  nil,  is72,  Copp*s  U.  s.  Mining  I  lecisions,  .'iO-t. 


§  228      MINERAL  AND  AGRICULTURAL  LANDS.        325 

Again,  in  many  localities  the  mineral-bearing  lands  had  not 
been  occupied  or  worked  because  of  the  lack  of  water,  or  other 
necessary  facilities  ;  but  it  did  not  follow  because  they  were  not 
then  occupied  or  worked  by  some  one  who  was  ready  to  contest 
the  right  of  the  agricultural  claimant,  that  they  were  not  min- 
eral lands,  or  that  they  might  not  under  a  changed  condition  of 
things  become  productive  mines. 

A  ditch  of  a  few  miles  in  length  frequently  rendered  mines 
very  profitable,  that  could  not  be  successfully  worked  without 
water.  But,  as  there  was  no  law  which  authorized  or  required 
these  mineral  affidavits,  so  there  was  nothing  to  prevent  their 
being  withheld  or  withdrawn  for  fraudulent  purposes.  In  some 
cases,  where  the  matter  came  on  for  hearing  before  the  register 
and  receiver,  the  mineral  affiants  failed  to  appear,  and  instances 
came  to  the  knowledge  of  the  Office  of  private  arrangements 
being  entered  into  between  the  respective  mineral  and  agricul- 
tural claimants,  by  which  the  latter  were  not  to  be  opposed  in 
obtaining  titles  to  the  land  which,  upon  being  patented  as  agri- 
cultural, was  to  be  held  by  the  several  parties  in  pursuance  of 
such  previous  agreement,  and  thus  the  only  obstacle  to  the  dis- 
position of  mineral  lands  as  agricultural — the  mineral  affidavit 
— was  withheld  or  removed.  The  order  of  withdrawal  was, 
therefore,  directed  to  be  adhered  to  and  strictly  enforced.1  In 
pursuance  of  this  order,  and  to  save  as  much  as  possible  the 
expense,  trouble,  and  delay  incident  to  the  existing  manner 
of  taking  proofs  as  to  the  mineral  or  agricultural  character  of 
lands,  directions  were  given  in  March,  1872,  that  testimony  upon 
this  point  might  be  taken  before  a  clerk  of  a  Court  of  Record 
in  and  for  the  county  in  which  the  land  is  situate,  after  due 
notice. 

At  the  hearing,  the  claimants  and  witnesses  will  be  thoroughly 
examined  with  regard  to  the  character  of  the  land  ;  whether  the 
same  has  been  thoroughly  prospected ;  whether  or  not  there 
exists,  within  the  tract  or  tracts  claimed,  any  lode  or  A'ein  of 
quartz  or  other  rock  in  place,  or  other  valuable  mineral  deposits, 
which  has  ever  been  claimed,  located,  recorded,  or  worked ; 
whether  such  work  is  entirely  abandoned,  or  whether  occasion- 

1Letterof  Commissioner,  March  11th,  1872,  Copp'sU.S.  Mining  Decisions,  304. 


326        MINERAL  AND  AGRICULTURAL  LANDS.       §  229 

ally  resumed ;  if  such  lode  does  exist,  by  whom  claimed,  under 
what  designation,  and  in  what  subdivision  of  land  it  lies  ; 
whether  any  placer  mine  or  mines  exist  upon  the  land ;  if  so, 
the  character  thereof — whether  of  the  shallow  surface  descrip- 
tion, or  of  the  deep  cement,  blue  lead,  or  gravel  deposits ;  to 
what  extent  mining  is  carried  on  when  water  can  be  obtained, 
and  what  the  facilities  are  for  obtaining  water  for  mining  pur- 
poses ;  upon  what  particular  ten-acre  subdivisions  mining  has 
been  done,  and  at  what  time  the  land  was  abandoned  for  mining 
purposes,  if  abandoned  at  all.1 

§  229.  Surveyor's  returns. — Some  of  the  acts  passed  prior 
to  1866  prohibited  the  extension  of  subdivisional  surveys  over 
large  districts  which  were  held  and  reserved  as  mineral  lands, 
and  subject  to  exploration  as  such.  The  policy  of  restricting 
subdivisional  surveys  to  agricultural  lands  was  abandoned  by 
the  Act  of  1866,  which  provided,  among  other  things,  for  the 
extension  of  the  subdivisional  surveys  over  mineral  lands,  and 
recognized  homestead  and  pre-emption  rights  to  lands  therein 
which  are  "  properly  agricultural,"  and  authorized  the  Secre- 
tary of  the  Interior  to  designate  and  set  apart  such  portions  as 
are  "clearly  agricultural,"  to  be  thereafter  subject  to  disposal  as 
other  lands  of  that  class.  Congress  did  not  intend  to  abolish  or 
do  away  with  the  distinction  between  mineral  and  agricultural 
land,  or  to  allow  mineral  lands  to  be  classed  and  disposed  of  as 
agricultural :  but  it  simply  provided  that  the  public  surveys 
mighl  be  extended  over  regions  that  were  so  clearly  not  agri- 
cultural in  character  that  they  had,  previously  to  that  time,  been 
regarded  and  treated  as  exclusively  mineral,  and  that  such  tracts 
:is  should  appear  to  be  clearly  agricultural  might  be  set  apart 
for  disposition  as  agricultural  lands,  while  the  mineral  lands, 
which  under  that  act  included  all  lands  in  mineral  regions  not 
properly  dud  clearly  agricultural,  should  be  still  reserved  for 
disposition  under  the  laws  relating  to  lands  of  that  class;  or,  in 
Other  won!-,  the   Act    of    L866  did    not  abolish  the  previous  rule 

.■md  policy  of  the  Government,  but  merely  modified  them  so  far 

n-    lo    extend    subdivisional    surveys    over     mineral     lands,    and 

i  [nstrui  I  ii  -'Mli,  1872,  copy's  U.  S.  Mining  Decisions,  •"•it;  Instruc- 

tions Feb,  I   '    I  -.77. 


§  229  MINERAL    AND    AGRICULTURAL    LANDS.  327 

authorized  the  Secretary  of  the  Interior  to  designate  and  set 
apart  for  agricultural  entry  such  tracts  as  should  be  found  to  be 
clearly  agricultural  in  character. 

Under  this  law,  the  Secretary  of  the  Interior  is  not  author- 
ized to  set  apart  and  designate  lands  as  agricultural  simply  be- 
cause there  is  no  proof  to  show  that  they  are  not  mineral,  for 
this  would  defeat  the  object  and  purposes  of  the  laws  which 
hold  mineral  lands  open  to  exploration  and  development,  and 
enable  parties  to  appropriate  undeveloped  mineral  land  as  agri- 
cultural. The  power  of  the  Secretary  is  confined  to  designat- 
ing and  setting  apart  such  tracts  as  are  clearly  and  properly 
agricultural,  and  no  others. 

Where  the  lands  are  returned  as  mineral  by  the  Surveyor- 
General,  the  burden  of  proof  is  on  the  parties  who  question  the 
correctness  of  the  return,  and  unless  they  establish  the  fact  that 
they  are  clearly  and  properly  agricultural  lands,  they  must  fail 
in  the  assertion  of  any  claim  or  right  to  them  under  laws  re- 
lating to  the  disposition  of  agricultural  lands.  Proof  of  the 
fact  that  no  paying  mines  have  ever  been  discovered  is  not  suf- 
ficient. 

A  case  arose  wherein  the  Surveyor-General  caused  to  be  in- 
dorsed upon  the  township  plat  the  following  words  :  "  The 
above  township  is  a  rough,  barren,  volcanic  country,  the  hills 
generally  broken  and  rocky.  The  south  half  of  the  township 
contains  gold  and  silver-bearing  quartz  veins,  the  great  Com- 
stock  Lode  passing  through  Sections  20,  29,  31,  and  32,  in  which 
are  situate  Virginia  City  and  Gold  Hill"  (Nevada) .  The  proof 
sustained  the  return  of  the  Surveyor-General.  To  disprove  the 
mineral  character  of  the  tracts,  a  hearing  was  held,  after  due 
notice,  and  in  the  prescribed  manner.  The  testimony  established 
the  fact  that  no  mines  had  yet  been  discovered  upon  the  tracts, 
but  that  they  lay  in  the  mineral  belt,  and  in  the  immediate  vi- 
cinity of  the  Comstock  Lode ;  and  notwithstanding  no  mines 
had  been  developed,  the  character  of  the  land,  its  location,  and 
the  testimony  indicated  the  existence  of  mineral  therein,  while 
the  fact  was  clearly  established  that  the  lands  were  not  of  any 
value  whatever  for  agricultural  purposes,  and  that  if  they  were 
of  any  value  at  all,  it  Avas  for  undeveloped  mines. 

In  pursuance  of  the  doctrine  above  enunciated,  the  claims  of 


328 


MINERAL    AND    AGRICULTURAL    LANDS. 


§  230 


the  State  of  Nevada  and  the  Central  Pacific  Railroad  Company 
of  California,  who  disputed  the  mineral  character  of  the  land, 
were  denied,  and  the  tracts  reserved  as  mineral.1 


§  230.  Prima  facie  accuracy  of  the  surveyor's  return. — 

The  surveyor's  return  of  the  character  of  land  is  prima  facie 
correct.  The  burden  of  proof  is  upon  the  party  seeking  to 
disprove  such  return.  If  the  testimony  does  not  show  that  the 
land  is  more  valuable  for  agricultural  than  for  mining  purposes, 
the  application  to  enter  as  a  pre-emptor  will  be  denied. 

In  such  contests  to  determine  the  character  of  land  any  person 
who  has  a  knowledge  thereof,  whether  interested  or  not,  is  per- 
mitted to  testify  in  behalf  of  the  surveyor's  return.2 

But  a  failure  of  a  Government  surveyor  to  segregate  mineral 
from  agricultural  lands  cannot  operate  to  defeat  the  rights  of 
occupant  miners.  In  the  face  of  an  open  and  notorious  posses- 
sion of  the  miner,  the  fact  that  the  claims  were  not  segregated 
and  listed  as  mineral  lands  was  held  not  available  for  the  settler. 
Segregation,  when  required,  must  be  made  by  the  surveyor ; 
and  to  hold  that  the  failure  of  the  surveyor  to  fully  discharge 
his  duty  could  operate  to  defeat  the  rights  of  the  miner,  was 
considered  violative  of  the  plainest  principles  of  justice.  The 
returns  of  the  surveyor  are  not  conclusive  as  to  the  character 
of  the  lands ;  for  the  Land  Office  allows  affidavits  as  to  the 
character  of  the  lands  to  be  made  in  impeachment  of  the  returns.3 
The  open,  notorious  possession  of  the  miner  was  considered  suf- 
ficient to  charge  the  settler  with  notice  of  the  character  of  the 
lode,  and  also  to  bring  the  lode  within  the  description  of  known 
mineral  deposits.  Nor  were  the  miner's  rights  regarded  as  for- 
feited, nor  in  the  least  abridged  by  failure  to  procure  a  patent 
for  the  claims.  There  was  nothing  obligatory  on  the  miner  to 
proceed  under  the  Act  of  1866,  and  where  they  failed  to  do  so, 
tlurc  being  no  adverse  interest,  they  held  the  same  relations  to 
the  premises  they  worked  as  they  did  before  the  passage  of  the 

1  In  re  Claims  of  the  State  of  Nevada  and  C.  P.  11.  R.  Co.  of  Cal.;  Decision  of 
(  '.mini  -i. \  i  nil  3d,  I874j  i  Copp's  Land-owner,  L8,  ill. 

i  Decision  of  Commissioner,  Dec.  22d,  L875,  2  Copp'a  Land-owner,  146;  Circu- 
ilayOth,  L871;  March  20th,  L872;  June  10th,  1872;  Rules  of  Practice,  Nov. 
29th,  L875;  Post. 

•  Gold  1 1  ill  Quartz  Mining  Co.  v.  [sh,  5  Oregon,  mi. 


§§  231-2       MINERAL    AND    AGRICULTURAL    LANDS.  329 

act,  with  the  additional  guarantee  that  they  possessed  the  right 
of  occupancy  under  the  statute.  As  the  settler  was  never  the 
owner  of  the  lode  and  never  obtained  title,  he  could  not  be  de- 
clared trustee  for  the  miner  nor  could  he  execute  a  deed  convey- 
ing to  the  plaintiff  the  legal  title.  The  proper  relief  was  con- 
sidered to  be  an  injunction  preventing  the  settler  from  assert- 
ing title  to  the  lode  and  from  interference  with  the  claim.1 

§  231.  Hearings  to  determine  the  character  of  land — 
Publication. — Published  notices  of  herrings  to  disprove  the 
mineral  character  of  land  should  not  be  signed  by  the  applicants 
themselves,  nor  should  they  make  their  own  arrangements  for 
hearing  testimony  and  publishing  notices. 

The  notice  of  the  hearing  should  be  prepared  by  the  local 
officers  and  signed  by  them,  in  order  to  secure  a  correct  descrip- 
tion of  the  land  and  to  insert  the  names  of  mineral  affiants, 
should  any  mineral  affidavits  covering  the  land  applied  for  be 
on  file  in  the  local  office. 

The  register  should  designate  the  paper  of  general  circulation 
near  the  land  in  which  to  publish  the  notice  ;  and,  in  all  cases 
where  practicable,  the  hearings  should  be  held  before  him. 
Where  distance  or  other  good  cause  renders  it  advisable,  he 
should  designate  an  officer  using  a  seal,  or  other  person  author- 
ized to  administer  oaths,  whose  character  is  known  to  him, 
and  residing  near  the  land,  as  the  proper  person  before  whom 
the  hearing  should  be  held. 

The  testimony  submitted  should  be  as  far  as  possible  by  ques- 
tions and  answers,  and  the  officer  by  whom  the  testimony  is 
taken  should  endeavor  to  elicit  full  information  as  to  the  mineral 
and  agricultural  qualities  of  each  ten-acre  tract  of  the  claim.2 

§  232.  What  is  mineral  land. — This  question  was  consid- 
ered in  a  case  in  California,3  prior  to  the  passage  of  the  Act  of 
1866. 

Section  eight  of  an  act  of  the  legislature  of  California  of 
April  16th,  1859,  provided  that  the  act  was  not  to  be  construed 

1  Gold  Hill  Quartz  Mining  Co.  v.  Ish,  5  Oregon,  104. 

2  Decision  of  Commissioner,  August  14th,  1875,  2  Copp's  Land-owner,  98. 

3  Ah  Yew  v.  Choate,  24  Cal.  562. 


330  MINERAL    AND    AGRICULTURAL    LANDS.  §  232 

so  as  to  authorize  or  confirm  the  location  or  purchase  of  any  of 
the  mineral,  swamp,  or  overflowed  lands  in  the  State  as  school 
lands  (Stat.  1859,  p.  340).  All  lands  containing  gold,  it  was 
held,  were  not  necessarily  mineral  lands  within  the  meaning  of 
the  act.  The  Court  said :  "It  is  often  a  matter  of  difficulty  to  de- 
termine whether  any  given  piece  of  land  should  be  classed  as 
mineral  land,  or  otherwise.  The  question  may  depend  upon 
many  circumstances :  such  as  whether  it  is  located  in  those 
regions  generally  recognized  as  mineral  lands,  or  in  a  locality 
ordinarily  regarded  as  agricultural  in  its  character.  Lands  may 
contain  the  precious  metals,  but  not  in  sufficient  quantities  to 
justify  working  them  as  mines,  or  make  the  locality  generally 
valuable  for  mining  purposes,  while  they  are  well  adapted  to 
agricultural  or  grazing  pursuits  ;  or  they  may  be  but  poorly 
adapted  to  agricultural  purposes,  but  rich  in  minerals  ;  and  there 
may  be  every  gradation  between  the  two  extremes.  There  is, 
however,  no  certain,  well-defined,  obvious  boundary  between  the 
mineral  lands  and  those  that  cannot  be  classed  in  that  category. 
It  is  to  be  considered  whether,  upon  the  whole,  the  lands  ap- 
pear to  be  better  adapted  to  mining  or  other  purposes.  It  is 
necessarv  to  know  the  condition  and  circumstances  of  the  land 
itself,  and  of  the  surrounding  locality.  It  is  the  duty  of  the 
officers  of  the  Government,  before  making  a  grant,  to  ascertain 
these  facts,  and  to  determine  the  problem  whether  the  lands  are 
mineral  or  not." 

Where,  therefore,  the  lands  appeared  to  have  been  surveyed 
with  a  view  of  I iringing  them  into  the  market,  and  they  were 
described  by  range,  township,  and  section,  according  to  the  of- 
ficial  survey  of  the  United  States,  and  the  location  was  approved 
by  the  Government,  the  purchase-money  paid  to  the  State,  the 
notice  of  intention  to  apply  Eor  a  patent  published  as  required 
by  law,  and  the  patent  duly  issued  by  the  State,  the  Ian  Is  were 
idered  agricultural,  and  will  he  so  declared  whenever  the 
regular  proceedings  pi  I  by  law  have  been  taken,  and  the 

officers  of  the  Governmenl  have  ascertained  these  facts,  and 
adjudged  the  lands  subject  to  be  granted.  The  Court  further 
said  :  ••  The  patent  is  the  record  of  the  State  that  the  land  was 
subject  to  location  under  the  grant  of  the  United  States,  and 
has  been  located  through  its  officers  in  pursuance  of  tin-  terms 


§  233  MINERAL    AND    AGRICULTURAL    LANDS.  331 

of  the  donation,  (Doll  r.  Meador,  16  Cal.  324)  and  in  this  case 
it  is  a  record  of  the  judgment  of  the  State,  by  its  officers  duly 
appointed  for  that  purpose,  that  the  conditions  and  character- 
istics of  the  land  are  not  such  as  to  constitute  it  mineral  land 
within  the  meaning  of  the  provisions  of  the  statute,  and  the 
verity  of  this  record  is  not  overthrown  by  the  mere  fact  appear- 
ing that  the  land  patented  has  been  ascertained  to  contain  a  suf- 
ficient amount  of  gold  to  induce  a  party  to  mine  it  for  that 
metal."  1 

§  233.  Burden  of  proof. — In  the  absence  of  proof  as  to  the 
mineral  or  non-mineral  character  of  tracts  upon  which  mineral 
affidavits  have  been  filed,  they  will  be  considered  as  mineral 
until  proved  otherwise;  but  where  land  has  been  returned  as 
agricultural,  has  been  entered  under  the  pre-emption  laws,  and 
proof  and  payment  have  been  made,  the  burden  of  proof  is 
upon  the  mineral  claimants.2 

Land  having  been  returned  as  mineral,  the  burden  of  proof 
is  upon  the  agricultural  claimants.  If  the  testimony  shows  that 
portions  of  the  surface  are  susceptible  of  cultivation,  and  the 
balance  is  used  for  grazing,  while  it  is  not  shown  that  valuable 
deposits  have  been  found  in  the  particular  location,  yet,  if  dis- 
coveries have  been  made  in  immediate  proximity,  the  entry 
may  be  suspended. 

If  the  land  has  been  returned  as  mineral,  an  agricultural  entry 
must  not  be  allowed  without  a  hearing. 

Whenever  land  is  returned  on  the  township  plat  as  mineral, 
or  upon  which  mineral  affidavits  have  been  filed,  or  which  is 
suspended  for  non-mineral  proof  by  order  from  the  Land  Office, 
a  hearing,  after  due  notice,  must  be  held  in  accordance  with  cir- 
cular instructions.  At  this  hearing,  if  no  adverse  claimant 
appears,  there  is  required  full  non-mineral  proof  of  every  legal 
subdivision;  and  if  such  proof  and  the  evidence  required  of 
agricultural  applicants  are  satisfactory,  the  entry  is  allowed ; 
but  if  an  adverse  claimant  appears,  the  register  must  await  the 

i  Ah  Yew  v.  Choate,  24  Cal.  562. 

-  I  'rcision  of  Commissioner,  Jan.  24th,  1872,  and  Decision  of  Acting  Secretary, 
Feb.  12th,  1872,  Copp's  U.  S.  Mining  Decisions,  77. 


332 


MINERAL    AND    AGRICULTURAL    LANDS. 


§234 


action   of  the  Land  Office  on  the  testimony  presented  before 
permitting  entry  of  the  land.1 

When  lands  are  withdrawn  as  mineral  in  character,  such 
withdrawal  shifts  the  burden  of  proof  on  the  agricultural 
claimant,  and  having  the  affirmative,  he  must  produce  conclu- 
sive evidence  of  the  non-mineral  character  of  the  land  he  applies 
to  enter.  But  if  the  testimony  establishes  the  fact  that  though 
a  small  portion  of  the  land  at  one  time  contained  gold,  that  por- 
tion has  been  exhausted  and  abandoned  for  many  years,  and  that 
no  part  of  that  tract  now  contains  mineral  in  sufficient  quanti- 
ties to  pay  for  working,  and  that  nearly  all  the  land  is  valuable 
for  agricultural  purposes,  the  patent  will  go  to  the  qualified  pre- 
emptor  under  the  agricultural  entry  upon  full  compliance  with 
the  laws.2 

§  234.  What  is  satisfactory  evidence  of  the  agricu1  • 
tural  character  of  land. — Where  it  was  shown  that  there 
were  on  the  land  agricultural  improvements,  to  the  value  of 
$1,000  or  $1,200  ;  that  the  greater  portion  was  inclosed  with 
fencing,  and  seven  or  eight  acres  of  it  cultivated  in  fruits,  vines, 
vegetables,  and  grain  ;  that  the  only  active  mining  done  on  the 
tract  was  at  a  quartz  mine  and  some  placer  diggings  ;  and  that 
the  owners  of  the  quartz  mine  had  abandoned  it,  declaring  that 
it  Was  exhausted  and  worthless,  and  the  diggings  were  aban- 
doned for  the  same  reasons  ;  and  that  there  were  some  quartz 
veins  on  adjoining  lands  that  might  run  into  the  land  in  question 
one  quarter,  but  that  they  were  all  cither  exhausted  or  unprofit- 
able ;  that  all  the  witnesses  testified  that  in  their  opinion  the 
land  was  more  valuable  for  agricultural  than  for  mining  pur- 
poses,  and  the  mineral  affiants,  though  present  at  the  trial,  in 
person  and  by  attorney,  offered  no  testimony  in  support  of  their 
affidavits,  but  contented  themselves  with  cross-examining  the 
opposing  witnesses,  the  agricultural  character  of  the  land  was 
considered  established.8 


1  Ewing  v.    1 1 : i  i-l  man,    Decision  of  Commissioner,    Feb.   18th,   1875,   1  Copp's 
Land-owner,  L80. 

■'  Mulls  '.  Rolls  &  Boss,  Decision  Acting  Secretary,  April  5th,  1S77,  4  Copp's 
Land-owner   L9 

<  larfc  '.  Ellis,  Decision  Secretary  Enterior,  July  10th,  1872,  Copp's  Mining 
Deci  Ion  ,  JL'h. 


§  235  MINERAL    AND    AGRICULTURAL    LANDS.  333 

§  235.  The  testimony. — The  testimony  should  show  the 
agricultural  capacities  of  the  land,  what  kinds  of  crops  are 
raised  thereon,  and  the  value  thereof ;  the  number  of  acres 
actually  cultivated  for  crops  of  cereals  or  vegetables,  and  within 
which  particular  ten-acre  subdivisions  such  crops  are  raised ; 
also,  which  of  these  subdivisions  embraces  the  improvements, 
giving  in  detail  the  extent  and  value  of  the  improvements,  such 
as  house,  barn,  vineyard,  orchard,  fencing,  etc. 

It  is  thought  that  bona  fide  settlers  upon  lands  really  agri- 
cultural will  be  able  to  show  by  a  clear,  logical,  and  succinct 
chain  of  evidence  that  their  claims  are  founded  upon  law  and 
justice,  while  parties  who  have  made  little  or  no  permanent  agri- 
cultural improvements,  and  who  only  seek  title  for  specula- 
tive purposes,  on  account  of  the  mineral  deposits  known  to 
themselves  to  be  contained  in  the  land,  will  be  defeated  in 
their  intentions.  The  testimony  should  be  as  full  and  complete 
as  possible,  and,  in  addition  to  the  leading  points  indicated  above, 
everything  of  importance  bearing  upon  the  question  of  the  char- 
acter of  the  land  should  be  elicited  at  the  hearing.  If,  upon  a 
review  of  the  testimony  at  the  General  Land  Office,  a  forty-acre 
tract  should  prove  to  be  properly  mineral  in  character,  that  fact 
will  be  no  bar  to  the  execution  of  the  settler's  legal  right  to  the 
remaining  non-mineral  portion  of  his  claim,  if  contiguous.1 

Notice  of  hearing  and  verification  of  affidavits. — Sec.  2335 
of  the  Revised  Statutes  reads  as  follows  :  "  All  affidavits  re- 
quired to  be  made  under  this  chapter  may  be  verified  before  an 
officer  authorized  to  administer  oaths  within  the  land  district 
where  the  claims  may  be  situated,  and  all  testimony  and  proofs 
may  be  taken  before  any  such  officer,  and,  when  duly  certified 
by  the  officer  taking  the  same,  shall  have  the  same  force  and 
effect  as  if  taken  before  the  register  and  receiver  of  the  Land 
Office.  In  cases  of  contest  as  to  the  mineral  or  agricultural 
character  of  land,  the  testimony  and  proofs  may  be  taken  as 
herein  provided  on  personal  notice  of  at  least  ten  days  to  the 
opposing  party  ;  or  if  such  party  cannot  be  found,  then  by  pub- 
lication of  at  least  once  a  week  for  thirty  days  in  a  newspaper, 
to  be  designated  by  the  register  of  the  land  office  as  published 

1  Instructions  March  20th,  1872,  (Jopp*s  U.  S.  Mining  Decisions,  311;  Instruc- 
tions Feb.  1st,  1877. 


334        MINERAL  AND  AGRICULTURAL  LANDS.       §  236 

nearest  to  the  location  of  such  land,  and  the  register  shall  re- 
quire proof  that  such  notice  has  been  given."  x 

§  236.  Special  cases. — Where  it  appeared  that  the  tract 
was  in  a  mineral  belt,  and  in  the  center  of  a  deposit  that  had 
been  worked  on  either  side,  and  found  to  yield  gold  in  paying 
quantities  ;  that  the  agricultural  claimant  had  boasted  of  his 
land  being  valuable  for  mining,  and  had  offered  to  dispose  of 
it  at  a  large  price  for  such  purpose  ;  that  a  tunnel  to  reach  the 
land  had  been  almost  continuously  in  process  of  construction  for 
a  considerable  time,  and  large  sums  of  money  had  been  and 
were  being  expended  to  bring  water  to  that  and  neighboring 
tracts  in  order  to  afford  the  necessary  facilities  for  hydraulic 
mining,  and  prospecting  also  yielded  evidences  of  mineral  char- 
acter, the  land  was  considered  more  valuable  for  mining  than 
for  agriculture,  and  the  land  held  to  be  mineral.2 

And  where,  although  land  was  shown  to  be  in  the  mineral 
belt,  and  in  the  immediate  vicinity  of  valuable  placer  and  lode 
claims,  yet  it  was  worthless  for  mining  purposes,  and  if  it  was 
ever  paying  ground  had  been  worked  out,  and  it  was  established 
that  the  land  was  of  very  great  value  for  agricultural  purposes, 
that  the  applicant  had  been  in  possession  for  twenty  years,  had 
cultivated  it  nearly  all  of  the  time,  and  had  very  valuable  and 
lasting  improvements  on  it,  the  land  was  held  agricultural.3 

Mines  only  become  valuable  when  they  can  be  developed  and 
the  precious  metals  extracted  ;  and  in  cases  where  the  land  is  of 
little,  if  any.  value  for  agricultural  purposes,  and  is  essential  to 
the  proper  working  of  deep  gravel  mines,  it  should  be  withheld 
from  sale  under  the  laws  regulating  the  disposal  of  agricultural 
lands,  and  disposed  of  only  to  such  parties  as  may  be  entitled 
lo  the  same  under  the  mining  acts  of  Congress. 

When-  the  testimony  submitted  at  the  hearing  established  the 
fad  that  the  land  was  of  Utile  value  for  agricultural  purposes, 
mid  that  it  was  bounded  on  the  south  by  valuable  gold-bearing 
gravel  mines  or  deep  hydraulic  diggings  which  could  be  success- 

:  May  loil,.  isTj,  Sec.  13,  17  D.  S.  Stats.  95. 
spulllam  '.  Hunter,  Decision  of  Secretary,  Feb.  5th,  1876,  affirming  Decision 
oi  <  ommissioner  A  pril  'Jlst,  is7r>.  2  Copp's  Land-owner,  180. 
■:  I  »<-<•! -i. >n  of  Secretary,  July  10th,  1872,  A.ugus1  6th,  1872,  Copp's  U.  S.  Mining 


§  23G  MINERAL    AND    AGRICULTURAL    LANDS.  335 

fully  worked  and  developed  only  by  means  of  tunnels  passing 
through  this  land  to  a  creek,  which  was  the  only  natural  and 
practicable  outlet  for  these  mines ;  and  it  was  shown  that  portions 
of  the  land  in  dispute  were  claimed  and  held  by  mine-owners, 
and  that  several  tunnels  were  being  run  through  this  land  for 
the  purpose  of  developing  and  working  said  gravel  mines,  and 
it  also  appeared  that  the  agricultural  applicant  had  conveyed 
by  deed  to  a  mining  company  certain  mining  rights  upon  the 
land  in  dispute,  and  that  he  acknowledged  the  mineral  character 
of  the  S.  }  of  S.  i  of  the  N.  W.  I  of  the  N.  W.  £  of  the  section, 
the  land  was  held  to  be  only  valuable  on  account  of  its  location 
with  reference  to  the  mining  claims,  and  of  far  greater  value 
for  mining  purposes  than  for  agricultural  purposes.1 

Where  a  small  portion  of  the  land  at  one  time  contained  gold 
in  paying  cpaantities,  yet  that  portion  has  been  exhausted  and 
abandoned,  and  nearly  all  the  land  is  valuable  for  agriculture, 
the  agricultural  character  of  the  land  may  be  considered  estab- 
lished. While  the  mining  interests  are  entitled  to  and  must  re- 
ceive protection  against  the  encroachments  of  persons  who,  un- 
der the  guise  of  agricultural  claimants,  seek  to  secure  title  to 
large  tracts  of  mining  land;  the  rights  of  bona  fide  pre-emption 
and  homestead  claimants  to  lands  proven  to  be  agricultural  are 
also  entitled  to  the  same  protection  against  adverse  combinations 
of  miners.2 

In  any  case  where  there  is  a  contest,  or  where  the  non-mineral 
character  of  the  land  and  the  bona  fides  of  the  claimant  are  not 
entirely  clear,  the  entry  will  not  be  permitted  until  the  testi- 
mony has  been  reviewed  at  the  General  Land  Office,  whose 
power  to  review,  revise,  or  reverse  the  action  of  the  register  is 
not  taken  away  or  impaired  by  the  act  of  paying  for  the  land, 
but  the  claimant  under  such  purchase  only  acquires  a  vested 
right  on  the  condition  that  the  officers  of  the  Department  shall 
concur  with  local  officers.3 

Lands  reserved  as  mineral  are  only  subject  to  the  pre-emption 
laws  after  their  segregation  by  the  Secretary  of  the  Interior.4 

1  Decision  of  Commissioner,  Jan.  3d,  187G,  2  Copp's  Land-o'wmer,  146. 
2McKenna  r.  Dillon,  Decision  of  Acting  Secretary,  May  6th,  1ST-,  Copp's  U. 
S.  Mining  Decisions,  93. 

3  Decision  of  Commissioner,  May  10th,  1872,  Copp's  U.  S.  Mining  Decisions,  94. 

4  Tong  v.  Hall,  Decision  of  Secretary  of  Interior,  Feb.   5th,  1876,  3  Copp's 
Land-owner,  2. 


336  MINERAL    AND    AGRICULTURAL    LANDS.         §§  237-9 

Land  adjudged  agricultural  by  the  Secretary  of  the  Interior, 
after  a  hearing  on  appeal  and  upon  evidence  taken  in  the  Land 
Office,  cannot  be  entered  under  the  mining  acts,  unless  such  dis- 
coveries or  developments  have  been  made  since  the  date  of  the 
hearing,  as  will  show  that  the  tract  described  is  of  more  value 
for  purposes  of  mining  than  of  agriculture.1 

§  237.   Discovery  of  mines  on  agricultural  lands. — In 

case  valuable  deposits  of  mineral  are  discovered  upon  a  legal 
subdivision  of  the  public  lands,  after  the  same  has  been  entered 
as  agricultural,  but  before  patent  has  issued  therefor,  the  parties 
owning  the  possessory  right  to  said  mine  may  make  application 
for  patent  for  the  same,  and  the  agricultural  entry  will  be  can- 
celed to  that  portion  of  the  tract  embraced  by  the  mining 
claim.2 

§  238.  Agricultural  patent  covering  mines  already 
"worked. — Where  parties  have  a  valid  mining  claim  under  the 
local  laws,  and  were  engaged  in  mining  on  the  land  embraced  in 
an  agricultural  claim  at  the  time  entry  thereof  was  made,  and 
that  fact  is  established  to  the  satisfaction  of  the  Land  Office, 
the  latter  will  afford  all  the  aid  in  its  power  to  set  aside  the 
patent  so  as  to  enable  the  miner  to  acquire  title  to  the  mine.3 

§  239.  Fraud  in  pre-emption  entry. — Where  one  made  a 
pre-emption  cash  entry,  charges  of  fraud  in  the  entry  were 
made  and  supported  by  affidavits.  The  entry  was  suspended, 
and  an  investigation  ordered.  The  Commissioner  canceled  the 
entry,  the  land  being  considered  mineral.  No  appeal  was 
taken.  A  rehearing  was  applied  for,  denied,  and  the  decision 
affirmed  by  the  Secretary. 

The  rehearing  was  denied,  but  it  was  said  that  if  the  appli- 
cant could  bring  himself  within  the  law  and  show  that  the  min- 
eral in  the  land  had  been  exhausted,  or  that  later  developments 
demonstrated  its  non-mineral  character,  he  could  make  a  new 
claim  ami  initiate  a  new  contest,  after  proper  notice  before  the 
local  officers.4 

1  Decision  of  Commissioner,  Dec.  2d,  i^tj,  Copp'a  0".  S.  Mining  Decisions,  150. 
»  [bid.  March  12th,  L873,  [bid.  L63. 

i   July  17th,  L8T3,  Ibid.  212. 
*  \>>      [on  "'  the  Secretary,  March 24th,  L876,  3 Copp'a  Land-owner,  2. 


§§  2-10-1   MINERAL  AND  AGRICULTURAL  LANDS.         337 

§  240.   Compromises   between  miners  and  settlers. — 

In  a  case  where,  upon  a  forty-acre  tract,  there  appeared  to  be 
both  agricultural  and  mineral  land,  it  was  suggested  that  an 
amicable  arrangement  be  made  between  the  claimants  in  order 
that  the  agricultural  might  be  segregated  from  the  mineral  por- 
tion in  accordance  with  circular  instructions,  otherwise  it  was 
said  it  would  be  reserved  as  mineral.1 

§  241.  Attempt  by  railroad  to  disprove  mineral  char- 
acter of  land. — It  is  probable  that  the  right  to  enter  lands  as 
agricultural,  which,  as  mineral  lands,  were  previously  excluded 
from  survey  and  sale,  is  confined  entirely  to  actual  settlers, 
coming  within  the  requirements  of  the  pre-emption  laws,  who, 
upon  making  competent  proof  that  the  tracts  actually  settled 
upon,  occupied,  and  improved  by  them  as  homesteads,  contain 
no  known  mines,  are  entitled  to  the  execution  in  their  favor  of 
the  pre-emption  or  homestead  laws. 

Where  an  attempt  was  made  to  prove  the  agricultural  char- 
acter of  a  certain  tract  previously  reserved  as  mineral  land,  to 
the  end  that  it  might  inure  to  a  railroad  company,  and  not  by  a 
party  coming  within  the  purview  of  the  10th  section,  it  was 
held  that,  even  if  the  proof  were  satisfactory,  the  whole  proceed- 
ing would  fail  for  want  of  legal  sanction  to  support  it.  The 
land  was  therefore  treated  as  mineral,  the  same  as  if  no  proceed- 
ings had  been  had.2 

Title  to  known  mines  does  not  pass  to  railroad  companies — 
Conditions  in  patent. — All  patents  issued  to  the  California  and 
Oregon  Railroad  Company  contain  a  clause  in  accordance  with 
the  requirements  of  law,  as  follows  : 

"  Excluding  and  excepting  from  the  transfer  by  these  presents 
all  mineral  lands,  should  any  such  be  found  to  exist,  in  the  tracts 
described  in  the  foregoing ;  but  this  exclusion  and  exception,  ac- 
cording to  the  terms  of  the  statute,  shall  not  be  construed  to 
include  coal  and  iron  lands." 

The  patent,  therefore,  does  not  pass  title  to  mineral  lands  other 

1  Tremaine  v.  Brydon,  Decision  Acting  Commissioner,  Nov.  14th,  1872,  Copp's 
U.  S.  Mining  Decisions,  148 ;  Instructions  of  Commissioner,  May  6th,  1871,  Copp's 
U.  S.  Mining  Decisions,  261.     See  309,  313. 

2  Decision  of  Commissioner,  Oct.  21st,  1871,  Copp's  U.  S.  Mining  Decisions,  60. 

W.  C— 22. 


338  MINERAL    AND   AGRICULTURAL    LANDS.  §  241 

than  coal  and  iron.  If,  therefore,  mining  claims  exist  upon  such 
a  tract,  no  title  to  the  same  is  acquired  by  the  railroad  company, 
but  on  the  contrary  the  title  remains  in  the  Government. 

Should  parties  who  have  the  possession  and  the  right  of  pos- 
session to  mining  claims  upon  such  a  tract  desire  to  secure  titles 
thereto,  their  applications  for  patents  will  be  received.1 

Railroad  selections. — In  every  case  reported  from  the  dis- 
trict land  offices  of  selections  made  under  the  Acts  of  1862  and 
1864,  for  the  Pacific  Railroad,  the  agent  of  the  company  in  the 
first  place  is  required  to  state  in  his  affidavit  that  the  selections 
are  not  interdicted,  mineral,  nor  reserved  lands,  and  are  of  the 
character  contemplated  by  the  grant.  Upon  the  filing  of  lists 
with  such  affidavits  attached,  it  is  made  the  duty  of  registers 
and  receivers  to  certify  to  the  correctness  of  the  selections  in  the 
particulars  mentioned,  and  in  other  respects.  They  subsequently 
undergo  scrutiny  in  the  land  office,  are  tested  by  the  plats,  and 
by  all  the  data  on  the  files,  sufficient  time  elapsing  after  the  se- 
lections are  made  for  the  presentation  of  any  objections  to  the 
Department  before  final  action  is  taken ;  and  to  more  effectually 
guard  the  matter,  there  is  inserted  in  all  £>atents  issued  to  said 
railroad  company  a  clause  to  the  following  effect :  "  Yet  exclud- 
ing and  excepting  from  the  transfer  by  these  presents  all  min- 
eral lands,  should  any  such  be  found  to  exist  in  the  tracts  de- 
scribed in  this  patent,  this  exception,  as  required  by  statute, ;  not 
extending  to  coal  and  iron  land.'  " 

A  person  in  the  occupancy  of  mineral  lands  under  the  local 
customs  and  rules  of  miners,  is  protected  by  the  license  granted 
in  the  first  section  of  the  Act  of  July  26th,  1866.  He  cannot 
be  ejected  by  a  railroad  company  having  no  title  to  the  land  at 
all.  The  Government  license,  it  is  reasonable  to  suppose,  would 
constitute  a  sufficient  defense  against  any  one  not  able  to  show 
;i  I, (iter  title.  The  grantee  of  such  license  is  no  trespasser  upon 
the  public  lands,  and  the  license  cannot  be  considered  as  revoked 
by  a  patent  to  a  railroad  company,  when  such  instrument  ex- 
pressly  excepts  and  excludes  from  the  grant  all  interdicted  min- 
eral Land.  Claimants  authorized  to  :>|>ply  for  and  to  obtain 
patents  under  the -Mining  Act  have  an  efficient  remedy  in  its  pro- 

i  in  re  California  and  Oregon  Railroad  Company,  Decision  Commissioner, 
March  2l8t,  1--.7T,  4  <  lopp'e  Land-owner,  2. 


§  242  MINERAL    AND    AGRICULTURAL    LANDS.  339 

visions,  and  by  taking  the  proper  steps  may  obtain  patents  for 
their  claims,  even  should  they  happen  to  be  embraced  within 
tracts  patented  to  railroad  companies,  as  the  exceptions  in  such 
patents  enable  the  United  States  to  segregate  the  mineral  lands 
included,  by  distinct  and  separate  conveyance  to  mining  claim- 
ants. 

Placers  more  valuable  for  mining  than  for  agriculture  can- 
not be  entered  as  pre-emption  or  homestead  lands,  nor  selected 
by  railroad  companies. 

§  242.  Non-mineral  proof  by  settlers  on  lands  within 
railroad  limits. — The  non-mineral  proof  required  of  parties 
who  enter  land  under  the  provisions  of  the  Act  of  March  3d, 
1875,  "  for  the  relief  of  settlers  on  lands  within  railroad  limits," 
in  cases  where  the  applicants  are  not  personally  acquainted  with 
the  character  of  the  land  they  desire  to  enter,  is  as  follows : 

1st.  The  affidavit  of  the  applicant  that,  to  the  best  of  his 
knowledge  and  belief,  the  land  sought  to  be  entered  is  non-min- 
eral in  character ;  the  usual  non-mineral  affidavit  being  modified 
by  omitting  the  words,  "that  he  is  well  acquainted  with  the 
character  of  said  described  land,  and  with  each  and  every  legal 
subdivision  thereof,  having  frequently  passed  over  the  same ; 
that  his  knowledge  of  the  same  is  such  as  to  enable  him  to  testify 
understandingly  with  regard  thereto,"  and  substituting  for  the 
words  "  to  his  knowledge  "  the  words,  "  to  the  best  of  his  knowl- 
edge and  belief "  ;  otherwise  the  usual  affidavit  to  remain  the 
same. 

2d.  An  agent's  non-mineral  affidavit  in  the  usual  form,  with 
changes  to  indicate  agency. 

3d.  The  applicant's  affidavit  that  the  person  so  acting  is  his 
authorized  agent.1 

1  Decision  of  Commissioner,  August  4th,  1875,  2  Copp's  Land-owner,  84. 


340  COAL  LANDS.  §§  243-4 


CHAPTER  XVII. 

COAL  LANDS  — EIGHT  OF  ENTRY  AND  OF  PEE-EMPTION— PEES- 
ENTATION  OF  CLAIMS— LIMITATION  OF  ENTRY—  CONFLICTING 
CLAIMS— EXISTING  RIGHTS. 

§  243.  Entry  of  coal  lands. 

§  244.  Pre-emption  of  coal  lands. 

§  245.  When  claims  are  to  be  presented.  . 

§  246.  Only  one  entry  allowed. 

§  247.  Conflicting  claims. 

§   248.  Existing  rights. 

§  249.  Departmental  regulations  and  instructions. 

§  250.  Restrictions  as  to  purchase. 

§  251.  School  sections  containing  coal. 

§  252.  Coal  lands  and  town  sites. 

§  253.  Actual  possession  of  coal  mines  upon  railroad  sections. 

§  254.  Coal  lands  in  Minnesota,  "Wisconsin,  and  Michigan. 

§  243.   Entry  of  coal  lands. — Section  2347  of  the  Revised 

Statutes  is  as  follows  :  "  Every  person  above  the  age  of  twenty- 
one  years,  who  is  a  citizen  of  the  United  States,  or  who  has  de- 
clared his  intention  to  become  such,  or  any  association  of  per- 
sons severally  qualified  as  above,  shall,  upon  application  to  the 
register  of  the  proper  lajid  office,  have  the  right  to  enter,  by 
legal  subdivisions,  any  quantity  of  vacant  coal  lands  of  the 
United  States  not  otherwise  appropriated  or  reserved  by  com- 
petent authority,  not  exceeding  one  hundred  and  sixty  acres 
to  such  individual  person,  or  three  hundred  and  twenty  acres 
to  such  association,  upon  payment  to  the  receiver  of  not  less 
than  ten  dollars  per  acre,  for  such  lands  where  the  same  shall 
be  situated  more  than  fifteen  miles  from  any  completed  rail- 
road, and  not  less  than  twenty  dollars  per  acre,  for  such  lands 
as  shall  he  within  fifteen  miles  of  such  road."1 

§  244.   Pre-emption  of  coal  lands. — Section  2348  of  the 
Revised  Statutes  reads:  "Any  person  or  association  of  persons 

J  Rev.  Stats.  2347;  Act  1873,  Sec.  1;  17  U.  S.  Stats.  607. 


§§  245-6  COAL    LANDS.  341 

severally  qualified,  as  above  provided,  who  have  opened  and  im- 
proved, or  shall  hereafter  open  and  improve,  any  coal  mine  or 
mines  upon  the  public  lands,  and  shall  be  in  actual  possession  of 
the  same,  shall  be  entitled  to  a  preference  right  of  entry,  under 
the  preceding  section,  of  the  mines  so  opened  and  improved  ; 
provided,  That  when  any  association  of  not  less  than  four  per- 
sons, severally  qualified  as  above  provided,  shall  have  expended 
not  less  than  five  thousand  dollars  in  working  and  improving 
any  such  mine  or  mines,  such  association  may  enter  not  exceed- 
ing six  hundred  and  forty  acres,  including  such  mining  improve- 
ments."1 

§  245.  Pre-emption  of  coal  lands — When  claims  are  to 
be  presented,  etc. — Section  2349  of  the  Revised  Statutes  is  in 
the  following  words  :  "  All  claims  under  the  preceding  section 
must  be  presented  to  the  register  of  the  proper  land  district 
within  sixty  days  after  the  date  of  actual  possession  and  the 
commencement  of  improvements  on  the  land,  by  the  filing  of  a 
declaratory  statement  therefor  ;  but  when  the  township  plat  is 
not  on  file  at  the  date  of  such  improvement,  filing  must  be  made 
within  sixty  days  from  the  receipt  of  such  plat  at  the  district 
office  ;  and  where  the  improvements  shall  have  been  made  prior 
to  the  expiration  of  three  months  from  the  third  day  of  March, 
eighteen  hundred  and  seventy-three,  sixty  days  from  the  expira- 
tion of  such  three  months  shall  be  allowed  for  the  filing  of  a 
declaratory  statement,  and  no  sale  under  the  provisions  of  this 
section  shall  be  allowed  until  the  expiration  of  six  months  from 
the  third  day  of  March,  eighteen  hundred  and  seventy-three."  2 

§  246.  Only  one  entry  allowed. — Section  2350  of  the 
Revised  Statutes  reads  :  "  The  three  preceding  sections  shall  be 
held  to  authorize  only  one  entry  by  the  same  person  or  associa- 
tion of  persons  ;  and  no  association  of  persons  any  member  of 
which  shall  have  taken  the  benefit  of  such  sections,  either  as  an 
individual  or  as  a  member  of  any  other  association,  shall  enter 
or  hold  any  other  lands  under  the  provisions  thereof ;  and  no 
member  of  any  association  which  shall  have  taken  the  benefit 

iRev.  Stats.  2348;  Act  1873,  Sec.  2;  17  U.  S.  Stats.  607. 
2  Ibid.  2349;  Ibid.  Sec.  3;  Ibid.  607. 


342  COAL  LANDS.  §§  247-9 

of  such  sections  shall  enter  or  hold  any  other  lands  under  their 
provisions  ;  and  all  persons  claiming  under  Sec.  2348  shall  be 
required  to  prove  their  respective  rights  and  pay  for  the  lands 
filed  upon  within  one  year  from  the  time  prescribed  for  filing 
their  respective  claims  ;  and  upon  failure  to  file  the  proper  no- 
tice, or  to  pay  for  the  land  within  the  required  period,  the  same 
shall  be  subject  to  entry  by  any  other  qualified  applicant." 1 

§  247.  Conflicting  claims  to  coal  lands. — Section  2351 
of  the  Revised  Statutes  reads :  "  In  case  of  conflicting  claims 
upon  coal  lands  where  the  improvements  shall  be  commenced 
after  the  third  day  of  March,  1873,  priority  of  possession  and 
improvement,  followed  by  proper  filing  and  continued  good 
faith,  shall  determine  the  preference  right  to  purchase.  And  also 
where  improvements  have  already  been  made  prior  to  the  third 
day  of  March,  1873,  division  of  the  land  claimed  may  be  made 
by  legal  subdivisions,  to  include  as  near  as  may  be,  the  valuable 
improvements  of  the  respective  parties.  The  Commissioner  of 
the  General  Land  Office  is  authorized  to  issue  all  needful  rules 
and  regulations  for  carrying  into  effect  the  provisions  of  this 
and  the  four  preceding  sections."  2 

§  248.  Existing  rights. — Section  2352  of  the  Revised  Stat- 
utes reads :  "  Nothing  in  the  five  preceding  sections  shall  be 
construed  to  destroy  or  impair  any  rights  which  may  have 
attached  prior  to  the  3d  day  of  March,  1873,  or  to  authorize 
the  sale  of  lands  valuable  for  mines  of  gold,  silver,  or  copper."  3 

§  249.  Regulations  and  instructions  of  the  Department 
concerning  coal  lands. — The  sale  of  coal  lands  is  provided  for : 

1st.  By  ordinary  private  entry  under  Sec.  1.  (Rev.  Stats. 
2347.     Act  of  March  3d,  1873, 17  U.  S.  Stats.  607.) 

2d,  By  granting  a  preference  right  of  purchase  based  on 
priority  of  possession  and  improvement  under  Sec.  2.4  (Rev. 
Stats.  2348.) 

The  land  entered  under  either  section  must  be  by  legal  sub- 

LEev.  Stata.  2360;  Act  L873,  Sec.  4;  17  U.  S.  Stats.  G07. 

a  [bid.  2351;  [bid.  Sec.  5;  [bid. 

b  [bid.  2362;  [bid.  Sec.  6;  H>id. 

*  [nstractions  April  L6th,  1873,  Subdivision  l. 


§  249  COAL   LANDS.  343 

divisions,  as  made  by  the  regular  United  States  survey  ;  entry 
is  confined  to  surveyed  lands ;  to  such  as  are  vacant,  not  other- 
wise appropriated,  reserved  by  competent  authority,  or  contain- 
ing valuable  minerals  other  than  coal.1  (Rev.  Stats.  2347.) 
A  person  is  not  disqualified  by  the  ownership  of  any  quantity 
of  other  land,  nor  by  having  removed  from  his  own  land  in  the 
same  State  or  Territory.2 

The  price  per  acre  is  $10,  where  the  land  is  situated  more 
than  fifteen  miles  from  any  completed  railroad,  and  $20  per 
acre  where  the  land  is  tvithin  fifteen  miles  of  such  road.  Where 
the  land  lies  partly  within  fifteen  miles  of  such  road,  and  in  part 
outside  such  limit,  the  maximum  price  must  be  paid  for  all  legal 
subdivisions  the  greater  parts  of  which  lie  within  fifteen  miles 
of  such  road.3  The  term  "  completed  railroad  "  is  held  to  mean 
one  which  is  actually  constructed  on  the  face  of  the  earth ;  and 
lands  within  fifteen  miles  of  any  point  of  a  railroad  so  constructed 
will  be  held  and  disposed  of  at  $20  per  acre.4  Possession  by 
agent  is  recognized  as  the  possession  of  the  principal.  The 
clearest  proof  on  the  point  of  agency  must,  however,  be  required 
in  every  case,  and  a  clearly  defined  possession  must  be  estab- 
lished.5 

The  opening  and  improving  of  a  coal  mine,  in  order  to  con- 
fer a  preference  right  of  the  purchase,  must  not  be  considered 
as  a  mere  matter  of  form ;  the  labor  expended  and  improve- 
ments made  must  be  such  as  to  clearly  indicate  the  good  faith 
of  the  claimant.6 

These  lands  are  intended  to  be  sold,  where  there  are  adverse 
claimants  therefor,  to  the  party  who,  by  substantial  improve- 
ments, actual  possession,  and  a  reasonable  industry  shows  an  in- 
tention to  continue  his  development  of  the  mines,  in  preference 
to  those  who  would  purchase  for  speculative  purposes  only. 
With  this  view,  there  is  requisite  such  proof  of  compliance 
with  the  law,  when  lands  are  applied  for  under  Sec.  2,  Rev. 
Stats.  2348,  by  adverse  claimants,  as  the  circumstances  of  each 
case  may  justify.7 

In  conflicting  claims,  where  improvement  has  been  made  prior 
to  March  3d,  1873,  if  each  party  make  subsequent  compliance 

1  Instructions  April  15th,  1873,  Subdivision  2.  2  Ibid.  Sub.  5 

3  Ibid.  Subs.  9,  10.  *  Ibid.  Sub.  11.  6  Ibid.  Sub.  13.  6  Ibid.  Sub.  U. 

-'  Ibid.  Sub.  15. 


344  COAL    LANDS.  §  249 

with  the  law,  the  land  is  to  be  awarded  by  legal  subdivisions,  so 
as  to  secure  to  each,  as  far  as  possible,  his  valuable  improve- 
ments ;  there  being  no  provision  in  the  act  allowing  a  joint 
entry  by  parties  claiming  separate  portions  of  the  same  legal 
subdivision.1 

In  conflicts  when  improvements,  etc.,  have  been  commenced 
subsequent  to  March  3d,  1873,  or  shall  be  commenced,  priority 
of  possession  and  improvement  governs  the  award,  when  the 
law  has  been  fully  complied  with  by  each  party.  A  mere  pos- 
session, however,  without  satisfactory  improvements,  will  not 
secure  the  tract  to  the  first  occupant  when  a  subsequent  claimant 
shows  his  full  compliance  with  the  law.2 

Contests  and  investigations. — After  an  entry  has  been 
allowed  to  one  party,  no  investigation  concerning  it  is  to  be 
made  by  the  register,  at  the  instance  of  any  person,  except  on 
instructions  from  the  Land  Office.  All  affidavits,  however,  are 
to  be  received  concerning  such  case,  and  forwarded  to  the  Gen- 
eral Land  Office,  accompanied  by  a  statement  of  the  facts  as 
shown  by  the  records  of  the  local  land  office.3 

Prior  to  entry,  it  is  competent  for  the  register  to  order  an 
investigation,  on  sufficient  grounds  set  forth  under  oath  of  a 
party  in  interest,  and  substantiated  by  the  affidavits  of  disinter- 
ested and  credible  witnesses.4 

Notice  of  contest,  in  every  case  where  the  same  is  practicable, 
must  be  made  by  reading  it  to  the  party  to  be  cited  and  by 
leaving  a  copy  with  him.  This  notice  must  proceed  from  the 
local  office,  and  be  signed  by  the  register  or  receiver.  Where 
such  personal  service  cannot  be  made  by  reason  of  the  absence 
of  the  party,  and  because  his  whereabouts  are  unknown,  a  copy 
may  be  left  at  his  residence,  or,  if  this  is  unknown,  by  posting  a 
copy  in  a  conspicuous  place  on  the  tract  in  controversy,  and  by 
publication  in  a  weekly  newspaper  having  the  largest  general 
circulation  in  the  vicinity  of  the  land,  (where  no  newspaper  is 
specified  by  the  Geneta!  Land  Office)  for  five  consecutive  in- 
Bertions,  covering  a  period  of  four  weeks  next  prior  to  the  trial; 
and  in  each  '-use  requiring  such  notice,  a  copy  must  be  for- 
warded  with  the  returns  to  the  General  Land.  Office,  accompanied 

1  [uatructious  April  \:,\\\,  is;:;.  Subdivision  16;  Rev.  Stats.  2351. 

I.  Snl..  17;  [bid.  B Ibid.  Sub.  18;  Ibid.  >  Ibid.  Sub.  19;  Ibid. 


§  249  COAL    LANDS.  345 

with  proof  of  service  by  affidavit  indorsed  thereon.1  In  every 
case  of  contest,  all  papers  in  the  same  must  be  forwarded  to  the 
General  Land  Office  for  review  before  an  entry  is  allowed  to 
cither  party.2  Thirty  days  from  the  decision  of  the  register  is 
allowed  to  enable  any  party  to  take  an  appeal,  or  file  argu- 
ment to  be  forwarded  to  the  General  Land  Office.3  And  no 
appeal  is  entertained  unless  the  same  be  forwarded  through  the 
district  land  office.4  A  party  may  still  further  appeal  from  the 
decision  of  the  Commissioner  of  the  General  Land  Office  to  the 
Secretary  of  the  Interior.  This  appeal  must  be  taken  within 
sixty  days  after  service  of  notice  on  the  party.  This  may  be 
filed  with  the  district  land  officers,  and  by  them  forwarded,  or 
it  may  be  filed  with  the  Commissioner,  and  must  recite  the 
points  of  exception.5  If  not  appealed,  the  decision  is  by  law 
made  final.6  After  appeal,  thirty  days  are  usually  allowed  for 
filing  arguments,  and  the  case  is  then  sent  to  the  Secretary,  whose 
decision  is  final  and  conclusive.7 

Manner  of  obtaining  title  by  private  entry — Application. — 
The  form  of  application  for  coal  lands  is  prescribed  by  subdivi- 
sion 26  of  the  Instructions.8 

Thereupon,  the  register,  if  the  tract  is  vacant,  will  so  certify  to 

1  Instructions  April  15th,  1873,  Subdivision  20;  Rev.  Stats.  2351. 

2  Ibid.  Sub.  21 ;  Ibid.  3  Ibid.  Sub.  22 ;  Ibid.  4  Ibid.  Sub.  23;  Ibid. 
s  Ibid.  Sub.  24;  Ibid.     6  Sec.  10,  Act  June  12th,  1858,  U.  S.  Stats.  Vol.  11,  p.  317. 

7  Instructions  April  15th,  1873,  Subdivision  25;  Rev.  Stats.  2351. 

8  The  following  form  is  prescribed  by  the  Department : 

APPLICATION  FOR  COAL  LAND. 

I, ,  hereby  apply,  under  the  provisions  of  the  Revised  Statutes  of  the 

United  States,  (Sees.  2347  to  2352  inclusive)  providing  for  the  sale  of  the  lands  of 

the  United  States  containing  coal,  to  purchase  the ■  quarter  of  section 

in  township of  range ,  in  the  district  of  land  subject  to  sale  at  the  land 

office  at ,  containing acres,  and  I  solemnly  swear  that  no  portion  of  said 

tract  is  in  the  possession  of  any  other  party;  that  I  am  twenty-one  years  of  age, 
a  citizen  of  the  United  States,  [or  have  declared  my  intention  to  become  a  citi- 
zen of  the  United  States]  and  have  never  held  nor  purchased  lands  under  said 
act,  either  as  an  individual  or  as  a  member  of  an  association;  and  I  do  further 
swear  that  I  am  well  acquainted  with  the  character  of  said  described  land,  and 
with  each  and  every  legal  subdivision  thereof,  having  frequently  passed  over 
the  same ;  that  my  knowledge  of  said  land  is  such  as  to  enable  me  to  testify 
tmderstandingl y  with  regard  thereto;  that  there  is  not,  to  my  knowledge,  with- 
in the  limits  thereof,  any  vein  or  lode  of  quartz  or  other  rock  in  place  bearing 
gold,  silver,  or  copper;  and  that,  there  is  not,  within  the  limits  of  said  land,  to 
my  knowledge,  any  valuable  mineral  deposits,  other  than  coal,  so  help  me  God. 

<Tothis  application  the  register  will  append  the  usual  jurat.) 


346 


COAL   LANDS. 


§249 


the  receiver,  stating  the  price,  and  the  applicant  must  then  pay 
the  amount  of  the  purchase-money.1  The  receiver  will  then  is- 
sue to  the  purchaser  a  duplicate  receipt,  and  at  the  close  of  the 
month  the  register  and  receiver  will  make  returns  of  the  sale  to 
the  General  Land  Office,  from  whence,  when  the  proceedings 
are  found  regular,  a  patent  or  complete  title  will  be  issued ;  and 
on  surrender  of  the  duplicate  receipt  such  patent  will  be  deliv- 
ered at  the  optien  of  the  patentee,  either  by  the  Commissioner 
at  Washington  or  by  the  register  at  the  district  land  office.2 
This  disposition  by  private  entry  will  be  subject  to  any  valid 
prior  adverse  right  which  may  have  attached  to  the  same  land, 
and  which  is  protected  by  section  six,  Rev.  Stats.  Sec.  2352.3 

When  the  application  to  purchase  is  based  on  a  priority  of 
possession,  as  provided  for  in  section  two,  the  claimant  must, 
when  the  township  plat  is  on  file  in  the  local  office,  file  his 
declaratory  statement  for  the  tract  claimed  within  sixty  days 
from  and  after  the  first  day  of  his  actual  possession  and  improve- 
ment. Sixty  days,  exclusive  of  the  first  day  of  possession,  etc., 
must  be  allowed.4 

Subdivision  31  prescribes  substantially  the  form  of  the  decla- 
ratory statement.5 


1  Instructions  April  15th,  1873,  Subdivision  27. 

2  Ibid.  Sub.  28.  3  ibid.  Sub.  29.  *  ibid.  Sub.  30. 
5  The  following  form  is  prescribed  as  the 

DECLARATORY  STATEMENT  ON  APPLICATION  FOR  COAL  LAND. 

I, ,  being years  of  age,  and  a  citizen  of  the  United  States,  [or  having 

declared  rny  intention  to  become  a  citizen  of  the  United  States]  and  never  hav- 
ing, either  as  an  individual  or  as  a  member  of  an  association,  held  or  purchased 
any  coal  lands  under  the  Act  approved  March  3d,  1873,  entitled,  "An  Act  to 
provide  for  the  sale  of  the  land  of  the  United  States  containing  coal,"  or  under 
chapter  six  of  title  thirty-two  of  the  Eevised  Statutes  of  the  United  States,  do 
hereby  declare  my  intention  to  purchase,  under  the  provisions  of  said  chapter 

six   of  title  thirty-two  of  the    Revised  Statutes  of  the  United  States,  the 

quarter  of  section ,  in  township ,  of  range  ,  of  lands  subject  to  sale 

at  the  district  land  office  at ,  and  that  I  came  into  possession  of  said  tract 

on  the day  of ,  a.  d.  18 — ,  and  have  ever  since  remained  in  actual  pos- 

ii  continuously,  and  have  expended  in  labor  and  improvements  on  said 
mine  the  sum  of  — —  dollars,  the  labor  and  improvements  being  as  follows: 
[Here describe  the  nature  and  character  <>f  the  improvements.] 
And  I  do  furthermore  solemnly  swear  that,  I  am  well  acquainted  with  the 

Character  of  said  described  land,  and  With  each  and  every  legal  subdivision 
thereof,  having  frequently  passed  over  the  same;  that  my  knowledge  of  said 
landissuch  as  to  enable  me  ).<>  testify  understandingly  with  regard  thereto; 
thai  tlare   is  not,  to  my  knowledge,  wit  bin  the  limits  thereof,  any  vein  or  lode 


§  249  COAL   LANDS.  347 

When  the  township  plat  is  not  on  file  at  the  date  of  claim- 
ant's first  j)OSsession,  the  declaratory  statement  must  be  filed 
within  sixty  days  from  the  filing  of  such  plat  in  the  local  of- 
fice.1 When  improvements  shall  have  been  made  prior  to  June 
4th,  1873,  the  declaratory  statement  must  be  filed  within  sixty 
days  from  that  date.2  No  sale  under  the  act  was  allowed  prior 
to  September  4th,  1873.  One  year  from  and  after  the  expiration 
of  the  period  allowed  for  filing  the  declaratory  statement  is 
given,  within  which  to  make  proof  and  payment ;  but  no  party 
is  allowed  to  make  final  proof  and  payment  except  on  notice  as 
aforesaid  to  all  others  who  appear  on  the  local  records  as  claim- 
ants to  the  same  tracts.3 

A  party  who  otherwise  complies  with  the  law  may  enter  af- 
ter the  expiration  of  said  year,  provided  no  valid  adverse  right 
shall  have  intervened.  He  postpones  his  entry  beyond  said 
year  at  his  own  risk,  and  the  Government  cannot  thereafter  pro- 
tect him  against  another  who  complies  with  the  law,  and  the 
value  of  his  improvements  can  have  no  weight  in  his  favor.4 

One  person  can  have  the  benefit  of  one  entry  or  filing  only. 
He  is  disqualified  by  having  made  such  entry  or  filing  alone,  or 
as  a  member  of  an  association.  No  entry  can  be  allowed 
an  association  which  has  in  it  a  single  person  thus  disqualified, 
as  the  law  prohibits  the  entry  or  holding  of  more  than  one 
claim,  either  by  an  individual  or  an  association.  No  entry  is  al- 
lowed, under  the  sections  relative  to  coal  lands,  of  lands  con- 
taining other  valuable  minerals.  The  character  of  the  land  is 
to  be  determined  under  the  rules  relative  to  agricultural  and 
mineral  lands.  Those  that  are  sufficiently  valuable  for  other 
minerals  to  prevent  their  entry  as  agricultural  lands,  cannot  be 
entered  under  the  coal  sections.5 

Assignments  of  the  right  to  purchase  under  this  act  will  be 
recognized  when  properly  executed.  Proof  and  payment  must 
be  made,  however,  within  the  prescribed  period,  which  dates 
from  the  first  day  of  the  possession  of  the  assignor  who  initiated 
the  claim.6 

of  quartz  or  other  rock  in  place,  bearing  gold,  silver,  or  copper ;  and  that  there  is 
not,  within  the  limits  of  said  land,  to  my  knowledge,  any  valuable  mineral  de- 
posit other  than  coal. 

1  Instructions  April  15th,  1873,  Subdivision  32.  -  Ibid.  Sub.  33. 

8  Ibid.  Sub.  34.  ^  ibid.  Sub.  35.  5  Ibid.  Sub.  36.  -6  Ibid.  Sub.  37. 


348 


COAL    LANDS. 


§249 


The  act  is  construed,  so  as  in  its  application  not  to  destroy  or 
impair  any  rights  which  may  have  attached  prior  to  March  3d, 
1873.  Those  persons  who  may  have  initiated  a  valid  claim 
under  any  prior  law  relative  to  coal  lands  are  permitted  to  com- 
plete their  entries  under  the  same.1 

The  local  officers  are  required  to  report  at  the  close  of  each 
month  as  "  sales  of  coal  lands  "  all  filings  and  entries  under  the 
act  in  separate  abstracts,  commencing  with  number  one,  and 
thereafter  proceeding  consecutively  in  the  order  of  their  recep- 
tion. Where  a  series  of  numbers  has  already  been  commenced 
by  sale  of  coal  lands,  the  same  is  continued  without  change.2 

The  affidavit  required  from  each  claimant  under  Sec.  2  at  the 
time  of  active  purchase  is  prescribed  by  Subdivision  39  of  the 
Coal  Land  Instructions.3 

In  case  the  purchaser  shows  by  an  affidavit  that  he  is  not  per- 
sonally acquainted  with  the  character  of  the  land,  his  duly  au- 
thorized agent  who  possesses  such  knowledge  may  make  the 
required  affidavit  as  to  its  character  ;  but  whether  this  affidavit 
is  made  by  principal  or  agent,  it  must   be  corroborated  by  the 


1  Instructions  April  15th,  1873,  Subdivision  38.  2  Ibid.  Idem. 

3  The  following  form  is  prescribed  by  the  Department : 

AFFIDAVIT   ON  APPLICATION    FOR   COAL   LAND. 

I, ,  claiming  the  right  of  purchase  under  chapter  six  of  title  thirty-two  of 

the  Revised  Statutes  of  the  United  States,  (Sees.  2347  to  2352  inclusive)  provid- 
ing for  the  sale  of  the  lands  of  the  United  States  containing  coal,  to  the 

quarter  of  section ,  in  township of  range  ,  subject  to  sale  at  , 

do  solemnly  swear  that  I  have  never  had  the  right  of  purchase  under  this  act, 
either  as  an  individual  or  a  member  of  an  association,  and  that  I  have  never 
held  any  other  lands  under  its  provisions;  1  further  swear  that  I  have  expended 
in  developing  coal  mines  on  said  tract,  in  labor  and  improvements,  the  sum  of 
dollars,  the  nature  of  sueli  improvements  being  as  follows: 

|  Here  describe  tlfe  nature  and  character  of  the  improvements.] 

Thai  I  am  now  in  the  actual  possession  <>f  said  mini's,  and  make  the  entry  for 
my  own  use  and  benefit,  and  not  directly  or  indirectly  for  the  use  and  benefit 
of  any  other  party;  and  [  do  furthermore  swear  thai  I  am  well  acquainted  with 
the  character  of  said  described  land,  and  with  each  and  every  Legal  subdivision 
of,  having  frequently  passed  over  the  same-,  that  my  knowledge  of  said 
land  is  such  as  to  enable  me  lo  testify  underslandingly  with  regard  thereto; 
that  tie  re  is  not,  to  my  knowledge,  within  the  limits  t hereof,  any  vein  or  lode  of 
quartz  or  other  rock  in  place  bearing  gold,  silver,  or  copper ;  and  that  there  is 
not,  within  the  Limits  of  said  land,  to  my  knowledge,  any  valuable  mineral  de- 
i  hei  i  hart  coal,  so  Jul  |  >  me  I  Lod. 

I,  — ,  of  the  Land  office  at  ,  do  hereby  certify  that  the  above  affida- 
vit, was  sworn  and  subscribed  to  before  me  this day  of ,  a.  d.  18 — . 


§§  250-1  COAL    LANDS.  349 

affidavits  of  two  disinterested  and  credible  witnesses  having 
knowledge  of  its  character.1 

§  250.   Restrictions  as  to  purchase — Coal  Land  Act. — 

No  person  who  has,  in  his  individual  capacity  or  as  a  member 
of  an  association,  taken  the  benefit  of  the  coal  land  acts,  can 
enter  or  hold  any  other  lands  thereunder.  If  an  association  of 
persons  enters  a  less  number  of  acres  of  coal  land  than  they 
might  have  done  under  said  act,  they  will  not  be  entitled  to 
make  a  second  entry.2 

Where  parties  have  located  or  filed  upon  coal  land,  they  may 
transfer  their  rights  in  the  premises  to  persons  duly  qualified 
under  the  act  to  enter  and  hold  coal  land  ;  but  no  assignment 
can  be  recognized  to  a  party  who  is  not  qualified  under  the  act 
to  hold  and  enter  such  lands.3 

§  251.  School  sections  containing  coal. — Lands  which 
are  found  upon  survey  to  be  designated  as  Sees.  16  or  36  did 
not  pass  to  the  State  of  California  under  the  Act  of  March  3d, 
1853,  when  the  same  are  mineral  lands.  No  mineral  lands 
were  granted  by  that  act.  This  applies  equally  to  coal  lands 
and  to  claimants  under  the  Coal  Land  Act  of  March  3d,  1873.4 

That  lands  containing  valuable  deposits  of  coal  have  been 
considered  and  treated  as  mineral  lands  is  evident  from  the  text 
of  the  Act  of  July  1st,  1864,  entitled  "  An  Act  for  the  disposal 
of  coal  lands  and  town  property  in  the  public  domain,"  viz., 
"  That  where  any  tracts  embracing  coal  beds  or  coal  fields,  consti- 
tuting portions  of  the  public  domain,  and  which  as  mines  are 
excluded  from  the  Pre-emption  Act  of  1841,  and  which  under 
past  legislation  are  not  liable  to  ordinary  private  entry,"  etc.5 

A  case  arose  wherein  it  was  debated  whether  Sees.  16  and  36 
in  each  township  within  the  limits  of  Wyoming  Territory  which 
were  found  to  contain  valuable  deposits  of  coal,  were  reserved 

1  Instructions  April  15, 1S73,  Subdivision  40. 

2  Thirty-seventh  paragraph  of  Circular  Instructions,  dated  April  15th,  1873. 
8  Decision  of  Commissioner,  June  14th,  1876,  3  Copp's  Land-owner,  50. 

4  Decision  of  Commissioner,  Nov.  3d,  1874,  1  Copp's  Land-owner,  135;  Act 
March  3d,  1873;  17  U.  S.  Stats.  607:  Rev.  Stats.  2347-2352:  Act  of  March  3d,  1853. 

6  Decision  in  the  Keystone  Case,  April  28th,  1873,  Copp's  U.  S.  Mining  Decis- 
ions, 105;  Sherman  v.  Buick,  Oct.  Term,  1876,  Supreme  Court  U.  S.  reversing 
S.  C.  45  Cal.  656. 


350  COAL  LANDS.  §§  252-3 

for  school  purposes,  or  could  be  sold  as  other  coal  lands.  But 
it  was  held  that  Sec.  14  of  the  Act  of  July  25th,  1868,  provid- 
ing for  a  temporary  government  for  the  Territory  of  Wyoming, 
made  no  exception  in  reserving  Sees.  16  and  36  for  school  pur- 
poses in  each  township,  and  the  General  Land  Office  therefore 
was  without  authority  of  law  for  disposing  of  school  sections 
within  the  Territory,  except  in  cases  where,  after  the  passage  of 
the  Act  of  March  3d,  1873,  the  parties  were  found  in  actual 
occupancy  of  the  lands  at  the  date  of  survey.1 

§  252.  Coal  lands  and  town  sites. — The  Town-site  Acts 
provide,  among  other  things,  that  no  title  "  shall  be  acquired  to 
any  valid  mining  claim  or  possession  held  under  the  existing 
laws  of  Congress,"  by  virtue  of  the  provisions  of  said  Town-site 
Acts.  Where  land  has  been  returned  as  "  coal  lands  "  by  the 
Surveyor-General,  it  cannot  be  entered  as  a  town  site  until  a 
hearing  has  been  had  to  determine  the  character  of  land,  viz., 
whether  it  is  mineral  or  agricultural  in  character.  The  coal- 
land  statutes  provide  for  the  sale  of  land  by  legal  subdivisions 
only,  and  it  is  necessary  to  present  evidence  in  regard  to  each 
forty-acre  tract  in  controversy.2 

§  253.  Actual  possession  of  coal  mines  upon  railroad 
sections. — In  Crismon  v.  Union  Pacific  Railroad  Company,  on 
January  9th,  1874,  the  township  plat  was  filed,  and  on  March 
6th,  1874,  Crismon  filed  his  declaratory  statement  claiming 
certain  lots  as  coal  land.  The  land  was  Avithin  the  limits  of  the 
withdrawal  for  the  Union  Pacific  Railroad. 

The  evidence  submitted  at  the  hearing  showed  that  one  Wild 
discovered  coal  upon  this  tract  in  June,  1864,  and  that  Wild 
jiiid  one  Redden  went  into  possession  thereof,  developing  the 
coal  bed  and  extracting  coal  therefrom:  that  they  remained 
continuously  in  the  possession  of  the  land  until  the  year  1869, 
when  Redden  conveyed  h is  interest  therein  to  Charles  Crismon 
and  son-,  mid  1870,  when  Wild  conveyed  to  Charles  Crismon, 
Si.,  and  George  (  Irismon  bis  interest  therein.     It  also  appeared 

Dec)  Ion  of  Commissioner,  July  30thj  L873,  L  Copp's  Land-owner,  19. 

cision  Acting  l  omnu  doner,   \pril  21st,  1874,  1  Copp's  Land-owner,  lit. 
i'.  i  in'  manner  "i  conducting  hearings  to  determine  the  true  character  of 
land  \,  Circular  Instructions  MayBth,  1871;  Maroh  20th,  1S7l>;  June  10th,  1872. 


§  253  COAL    LANDS.  351 

that  Charles  Crismon,  Sr.,  and  one  Groesbeck  conveyed  their 
interest  in  the  tract  to  George  Crismon,  November  21st,  1874. 

The  evidence  showed  that  the  land  had  been  in  the  actual 
possession  and  occupation  of  Wild,  Redden,  and  their  grantees 
since  the  date  of  the  original  discovery  of  coal  therein,  and  that 
they  had  during  that  time  expended  more  than  $20,000  in 
developing  the  tract  and  in  extracting  coal  therefrom. 

The  Union  Pacific  Railroad  was  definitely  located  past  this 
land  in  June,  1868. 

The  question  was  presented  whether  the  tracts  inured  to  the 
railroad  company  by  virtue  of  their  grant.  Mineral  lands  are 
excluded  from  the  grant  to  said  company,  but  the  4th  Section 
of  the  Act  of  July  2d,  1864,  provides  that  the  term  mineral 
land  "  shall  not  be  construed  to  include  coal  and  iron  lands." 
The  section  also  provides  that  "  any  lands  granted  by  this  Act 
or  the  act  to  which  this  is  an  amendment  shall  not  defeat  or 
impair  any  pre-emption,  homestead,  swamp  land,  or  other  lawful 
claim." 

The  Act  of  3d  March,  1865,  (13  Stats.  529)  provided  "  that 
in  the  case  of  any  citizen  of  the  United  States  who,  at  the  pas- 
sage of  this  act,  may  be  in  the  business  of  bona  fide  actual  coal 
mining  on  the  public  lands  *  *  for  purposes  of  commerce, 
such  citizen,  upon  making  proof  satisfactory  to  the  register  and 
receiver  to  that  effect,  shall  have  the  right  to  enter,  according 
to  legal  subdivisions,  a  quantity  of  land,  not  exceeding  one  hun- 
dred and  sixty  acres,  to  embrace  his  improvements  and  mining 
premises."  This  act  also  specified  when  the  declaratory  state- 
ment should  be  filed,  to  wit :  "In  case  of  lands  unsurveyed  at  the 
date  of  the  act,  such  declaratory  statement  shall  be  filed  within 
three  months  from  the  return  to  the  district  office  of  the  official 
township  plat." 

In  the  case  under  consideration,  rights  had  attached  to  the 
coal  lands  under  the  Act  of  3d  March,  1865,  before  the  line  of 
the  road  was  definitely  fixed  past  the  land,  and  hence,  by  the 
terms  of  the  Act  of  July  2d,  1864,  the  tracts  were  excluded 
from  the  grant  to  the  company. 

The  right  which  Wild  and  Redden  had  acquired  was  subject 
to  assignment,  and,  as  already  stated,  was  assigned  to  Crismon.1 

1  Crismon  v.  U.  P.  R.  E.  Co.  Decis.  of  Com.  July  2Gtb,  1875,  2  Copp's  L.  O.  G7. 


352  COAL   LANDS.  §  254 

§  254.  Coal  lands  in  Minnesota,  Wisconsin,  and  Mich- 
igan.— It  was  a  question  not  settled  May,  1874,  whether  coal 
lands  in  Minnesota,  Wisconsin,  and  Michigan  could  be  pur- 
chased at  private  entry  the  same  as  agricultural  lands,  or  must 
be  bought  under  the  Coal  Act  of  March  3d,  1873.  It  is  clear 
that  from  February  18th,  1873,  the  date  of  the  act  excepting 
coal  and  iron  from  the  operation  of  the  General  Mining  Act  of 
May  10th,  1872,  to  March  3d,  1873,  coal  lands  in  those  States 
were  purchasable  at  ordinary  private  entry.1 

1 1  Copp's  Land-owner,  31. 

Registers  are  required  to  forward  to  the  General  Land  Office,  with  coal-land 
entries,  under  Sec.  2348  of  the  Revised  Statutes,  the  original  declaratory  state- 
ments, retaining  copies  on  file.  (Decision  of  Acting  Commissioner,  Jan.  21st, 
187G,  2  Copp's  Land-owner,  162.)    See,  generally  :  Instructions  of  Aug.  20th, 

1864,  under  Coal-land  Act  of  July  1st,  1864,  and  supplemental  Act  of  March  3d, 

1865,  Copp's  Pub.  L.  L.  661-664;  Instructions  of  April  15th,  1873,  under  Coal-land 
Act  of  March  3d,  1873,  Id.  667;  Instructions  August  11th,  1873,  Id.  672;  Instruc- 
tions August  14th,  1873,  Id.  673-677. 


§§  255-6  MISCELLANEOUS    PROVISIONS.  353 


CHAPTER    XVni. 

MISCELLANEOUS    PROVISIONS. 

§  255.   Power  of  the  President  as  to  appointments. 

§  256.   Pending  applications — Existing  rights. 

§  257.   Possessory  actions  relative  to  mines. 

§  258.   Practice  before  the  Land  Department — Hearings,  contests,  and  appeals 

— "Witnesses  and  testimony. 
§  259.   Appeals,  exceptions,  evidence. 
§  260.   Fees  of  registers  and  receivers. 
§  261.   Payment  pending  contest. 

§  262.   Decisions  of  the  Land  Department — Their  authority. 
§  263.  Right  of  inspection  of  mine.  * 

§  264.   Mining  claims  in  river  beds. 
§  265.   Timber  on  mineral  lands — Railroad  companies. 
§  266.   Claims  not  within  any  mining  district. 
§  267.   Removal  of  machinery. 
§  268.   Criminal  offenses. 
§  269.  Various  provisions. 

§  255.  Power  of  the  President  to  provide  districts  and 
officers. — Section  2343  of  the  Revised  Statutes  provides: 
"  The  President  is  authorized  to  establish  additional  land  dis- 
tricts, and  to  appoint  the  necessary  officers  under  existing  laws, 
whenever  he  may  deem  the  same  necessary  for  the  public  con- 
venience in  executing  the  provisions  of  this  chapter."  x 

§  256.  Pending  applications — Existing  rights. — Section 
2328  of  the  Revised  Statutes  reads  as  follows :  "  Applications 
for  patents  for  mining  claims  under  former  laws  now  pending 
may  be  prosecuted  to  a  final  decision  in  the  General  Land  Office  ; 
but  in  such  cases  where  adverse  rights  are  not  affected  thereby, 
patents  may  issue  in  pursuance  of  the  provisions  of  this  chap- 
ter ;  and  all  patents  for  mining  claims  upon  veins  or  lodes  here- 
tofore issued,  shall  convey  all  the  rights  and  privileges  conferred 

1  Rev.  Stats.  2343,  Sec.  7,  Act  of  1866;  14  U.  S.  Stats.  252. 

W.  C— 23. 


354  MISCELLANEOUS    PROVISIONS.  §§  257-8 

by  this  chapter,  where  no  adverse  rights  existed  on  the  tenth 
day  of  May,  1872."  » 

§  257.  Possessory  actions  relative  to  mines. — Section 
910  of  the  Revised  Statutes  provides  that  "  no  possessory 
action  between  persons,  in  any  Court  of  the  United  States,  for 
the  recovery  of  any  mining  title,  or  for  damages  to  any  such  title, 
shall  be  affected  by  the  fact  that  the  paramount  title  to  the 
land  in  which  such  mines  lie  is  in  the  United  States  ;  but  each 
case   shall  be  adjudged  by  the  law  of  possession."  2 

§  258.  Practice  before  the  Land  Department — Hear- 
ings, contests,  and  appeals. — With  a  view  to  the  promotion 
of  greater  uniformity  in  the  practice  in  cases  before  the  United 
States  District  Land  Offices,  the  General  Land  Office,  and  the 
Department  of  the  Interior,  certain  rules  were  adopted  and  ap- 
proved under  date  of  November  29th,  1875.3 

Hearings  and  contests. — In  the  adjustment  of  conflicting 
claims  to  lands  under  the  various  statutes,  it  very  frequently  be- 
comes necessary  to  institute  regular  proceedings  in  the  nature 
of  a  formal  hearing,  with  notice  to  all  parties  to  the  record,  in 
order  to  reach  the  facts  and  legal  conditions  upon  which  an 
award  of  the  tract  may  be  based.  (Rev.  Stats.  Sections  2263, 
2273,  2297,  2326,  2335,  2351,  2467,  and  2488.) 

To  conduct  such  investigations  in  an  orderly  manner,  and 
with  due  regard  to  the  rights  of  all  parties,  requires  the  exer- 
cise of  sound  judgment  and  disci-etion  ;  and  although,  from  the 
great  variety  of  particular  conditions  and  circumstances,  details 
must  necessarily  be  governed,  in  great  measure,  by  the  inci- 
dents  of  each  case,  yet  the  observance   of  certain  fixed  general 

i  Sec.  9of  the  Act  of  1872  reads:  "That  Sees.  1,2,  3,  4,  and  G  [of  the  Act  of 
18Gi;]  are  hereby  repealed,  bul  such  repeal  shall  not  affect  existing  rights.  Ap- 
plications for  patents  for  mining  claims  now  pending,  maybe  prosecuted  to  a 
final  decision  in  the  General  Land  Office;  but  in  such  cases  where  adverse  rights 
are  aol  affected  thereby,  patents  may  issue  in  pursuance  of  the  provisions  of 
<  i ;  and  all  patents  for  mining  claims  heretofore  issued  under  the  Act  of 
July  26th,  L866,  shall  convey  all  the  rights  and  privileges  conferred  by  this  act, 
where  do  adverse  rights  exist  a1  the  time  of  Hie  passage  of  this  act." 

-  Rev.  Btats.  910;  See.  9,  Acl  of  Feb.  27th,  L865;  L3  U.  S.  Stats.  111. 

8  Rules  approved  bySecretary  of  the  Interior  Nov.  29th,  L875,  printed,  pub- 
1  and  promulgated  by  Commissioner,  Dec.  1st,  1875,  2Copp's  Land-owner, 
l  13 


§  258  MISCELLANEOUS   PROVISIONS.  355 

rules  tends  to  promote  uniformity  and  dispatch  in  proceedings, 
to  secure  fairness  to  parties  concerned,  and  materially  aids  reg- 
isters and  receivers  in  the  performance  of  this  delicate  and 
highly  important  duty.  The  following  provisions  were  made 
generally  applicable,  leaving  exceptional  cases  to  be  particularly 
considered  under  special  instructions,  according  to  the  circum- 
stances arising  in  each  : 

Investigations  are  usually  commenced  upon  the  application  of 
one  or  more  of  the  respective  parties  to  make  due  proof  of  his 
or  their  claims,  or  to  clear  the  record  of  an  abandoned  or  de- 
fective claim,  so  as  to  leave  undisturbed  and  undisputed  the 
right  of  the  party  so  proceeding.  In  such  case  the  register  and 
receiver  are  authorized  to  issue  the  proper  notices  to  all  parties 
to  the  record,  or  claiming  an  interest,  of  a  day  upon  which  they 
will  receive  testimony  touching  the  legal  right  to  the  land. 

If,  however,  an  entry  of  the  tract  has  previously  been  per- 
mitted, and  remains  of  record  upon  the  books  of  the  Office,  all 
applications  to  attack  such  record  or  to  impeach  the  entry  must 
be  forthwith  submitted  to  the  Commissioner  of  the  General 
Land  Office,  with  a  special  report  and  recommendation  from 
the  register  and  receiver ;  and  the  question  of  ordering  such 
hearing  will  be  determined  by  the  Commissioner  upon  the  mat- 
ters set  forth  in  the  application  and  report,  in  connection  with 
the  records  in  his  office  affecting  the  status  of  the  land.  In  no 
case  of  this  nature  should  jurisdiction  to  try  the  questions  in- 
volved be  assumed  by  the  district  officers  without  a  special  or- 
der to  proceed,  received  from  the  Commissioner  of  the  General 
Land  Office. 

The  notice  to  the  parties  should  give  sufficient  time  for  a  fair 
and  full  trial ;  and  as  the  Department  has  no  compulsory  pro- 
cess for  the  production  of  testimony,  but  must  rely  on  such  as 
parties  may  be  able  to  procure,  at  least  thirty  days  should  be  al- 
lowed, after  notice,  before  trial,  unless  by  consent  of  parties  an 
earlier  day  can  be  named,  in  which  case  it  is  always  desirable  to 
proceed  with  the  least  practicable  delay. 

Parties  making  application  for  contest  should  provide  suffi- 
cient security  for  costs,  so  that  the  register  and  receiver  may 
not  be  compelled  to  advance  from  their  own  funds  the  expenses 
of   the    hearing,  nor   incur    individual    responsibility   therefor. 


356  MISCELLANEOUS    PROVISIONS.  §  258 

When  brought  to  trial  the  costs  of  the  case  may  be  equitably- 
apportioned  by  those  officers  in  the  exercise  of  a  sound  discre- 
tion, and  any  sum  deposited  as  security,  over  the  proper  appor- 
tionment to  the  party,  should  be  returned  to  him  upon  the  final 
disposition  of  the  case.  Only  the  actual  costs  of  notice,  and  the 
legal  fees  for  reducing  testimony  to  writing,  or  for  acting  on 
applications  for  mineral  lands,  can  be  charged  to  the  parties.1 
Costs  of  notice  will,  of  course,  include  the  notice  of  further 
proceedings  by  way  of  appeal,  including  notices  to  file  argument, 
etc.,  up  to  the  final  notice  of  award,  should  the  case  be  prose- 
cuted before  the  Secretary  of  the  Interior. 

Where  hearings  are  ordered  by  the  office  upon  discovery  of 
reasons  for  suspension  in  the  usual  course  of  examination  of 
entries,  the  preliminary  costs  will  necessarily  be  provided  from 
the  contingent  fund  for  registers  and  receivers  ;  but  when  the 
parties  are  actually  brought  before  the  register  and  receiver  in 
obedience  to  the  order,  such  costs  should  be  collected,  and  pro- 
vision required  for  such  further  notification  as  may  become  nec- 
essary in  the  usual  progress  of  the  case  to  final  decision. 

As  before  stated,  the  Department  has  no  means  of  enforcing 
by  compulsory  process  the  production  of  testimony.  It  is, 
therefore,  the  more  essential  that  all  the  material  facts  bearing 
upon  a  case  be  developed  and  brought  to  the  knowledge  of  the 
officers  conducting  the  investigation,  even  at  the  risk  of  accept- 
ing matter  not  strictly  relevant  under  the  rules  of  the  Courts 
having  power  to  compel  the  attendance  of  witnesses,  and  to 
reach  by  reference  to  text-books  and  approved  precedents  the 
more  nice  and  just  discriminations  of  the  judicial  tribunals. 

The  register  and  receiver  will  be  particularly  careful  to  reach, 
IF  possible,  the  exact  condition  and  status  of  the  tract  involved ; 
the  nature,  extent,  and  value  of  alleged  improvements  ;  by 
whom  made  and  at  what  date  ;  the  true  date  of  the  settlement 
of  persons  claiming  as  prc-emptors  ;  the  steps  taken  to  mark 
and  secure  the  claim  ;  and  the  stains  of  the  land  at  that  date 
upon  I  In'  records  of  their  office.  In  like  manner,  under  the 
homestead  and  other  Laws,  the  conditions  affecting  the  inception 
of  the  alleged  right,  as  well  as  the  subsequent  acts  of  the  re- 

'  Rev.  Stats.  Sec.  2238. 


§  258  MISCELLANEOUS    PROVISIONS.  357 

spective  claimants,  should  be  fully  and  specifically  examined, 
and  such  testimony  as  may  be  offered  should  be  considered — 
due  regard  being  had  in  every  instance  to  the  necessity  of  giv- 
ing opposing  claimants  the  opportunity  to  confront  and  cross- 
examine  the  witnesses. 

When,  through  ignorance,  or  for  the  purpose  of  avoiding  the 
jjroduction  of  material  facts,  the  parties  or  their  attorneys  fail 
to  draw  from  the  witness  the  facts  apparently  within  his  knowl- 
edge necessary  to  lead  the  judgment  of  the  officers  to  a  cor- 
rect conclusion  respecting  any  point  connected  with  the  case, 
the  register  and  receiver  should  by  judicious  questioning  per- 
sonally direct  the  examination,  and  thus  obtain  the  desired  in- 
formation. 

If,  for  good  reason,  parties  are  prevented  from  bringing  their 
witnesses  in  person  to  the  district  office,  upon  affidavit  of  that 
fact  continuance  may  be  granted,  and  the  depositions  of  such 
witnesses  may  be  received  at  the  adjourned  hearing:  Provided, 
they  have  been  properly  taken,  with  due  notice  to  the  opposite 
party,  by  any  officer  having  the  powers  of  a  magistrate  or 
commissioner ;  due  regard  being  had  to  proximity  to  the  land, 
residence  of  witnesses  and  parties,  and  the  convenience  of  both 
parties,  so  that  the  opportunity  of  cross-examination  has  not 
been  prejudiced.  Such  depositions  should  not  be  received  as  a 
matter  of  course  at  a  first  hearing,  unless  offered  by  consent  of 
parties  for  the  purpose  of  avoiding  expense  and  delays  in  the 
proceedings,  or  where  it  may  be  shown  that  due  notice  has  been 
given  beforehand  that  they  will  be  received,  and  all  the  oppor- 
tunity reasonably  required  by  the  opposing  claimant  has  been 
afforded. 

Upon  objection  being  made  to  the  competency  or  admissibility 
of  evidence,  the  matter  should  not  be  excluded,  but  should  be 
noted  as  excepted  to,  and  come  up  with  the  case  for  the  consid- 
eration of  the  Commissioner. 

Witnesses  and  testimony — Production  of  loitnesses. — As  the 
law  provides  no  compulsory  process  to  secure  the  attendance  of 
witnesses  before  registers  and  receivers,  parties  serve  their 
own  subpoenas,  and  as  a  general  thing  no  difficulty  has  been  ex- 
perienced. The  local  officers  must,  on  hearings,  afford  the  right 
©f  cross-examination  of  witnesses,  or  their  testimony  will  not  be 


358  MISCELLANEOUS    PROVISIONS.  §  258 

received  by  the  General  Land  Office.1  Testimony  and  affidavits 
taken  on  a  hearing  without  notice  to  the  opposite  party  and 
without  opportunity  of  cross-examination  cannot  be  considered.2 

Affidavits  sworn  to  before  a  Justice  of  the  Peace  must  be 
accompanied  by  a  certificate  of  the  proper  officer,  that  the  per- 
son is  a  Justice  of  the  Peace,  and  when  before  a  Notary  Public 
the  notarial  seal  must  be  attached.3 

The  officers  before  whom  the  affidavit  is  made  should  usually 
be  able  to  certify  to  the  credibility  of  the  witness ;  yet,  where 
such  is  not  the  case,  and  the  deponent  is  a  stranger,  it  is  proper 
to  require  his  character  for  truth  to  be  established  to  the  satisfac- 
tion of  the  officer,  before  giving  credit  to  his  affidavit,  in  all 
cases  where  the  question  deposed  to  is  not  merely  technical,  but 
goes  to  the  merits  of  the  claim. 

The  law  simply  requires  that  the  officers  should  be  satisfied 
of  the  truth  of  the  testimony  offered,  in  whatever  form  pre- 
sented.4 

Parties  interested. — By  the  Act  of  Congress  of  July  2d, 
1864,  Sec.  3,  Vol.  13,  p.  351,  Stats,  at  Large,  witnesses  are  not 
excluded  from  testifying  in  the  Courts  of  the  United  States  on 
account  of  being  parties  to  or  interested  in  the  issue  tried. 
The  same  rule  should  be  observed  in  proceedings  before  the  Ex- 
ecutive Department.  The  weight  of  the  testimony  is,  as  in 
other  cases,  a  matter  about  which  the  officer  is  to  exercise  his 
judgment  and  discretion.5 

Having  carefully  taken  and  examined  the  evidence,  the 
register  and  receiver  will  render  thereon  their  joint  report  and 
opinion,  with  full  and  specific  reference  to  the  posting  and 
annotations  upon  their  records,  subject  to  the  appeal  hereinafter 
provided  in  these  regulations,  and  will  forward  the  entire  record 
to  the  General    Land  Office,  with  a  brief  letter  of  transmittal, 

1  In  re  Brunswick  Mint-,  Decision  of  the  Commissioner,  Oct.  19th,  1876,  3 
<  lopp's  Land-owner,  I !  I. 

-  Holland  V.  Gulielmi,  Decision  of  Commissioner,  March  14th,  1873,  Copp's  U. 
S.  Mining  I  tecisions,  104. 

B  in  re  Cerro  Bonito  Quicksilver  Mine,  Decision  of  Secretary,  March  10th, 
1872,  i  Copp'B  Land-owner, .'!. 
•  [),.,         i,   of  (In-  Commissioner,  Aug.  15th,  18G9,  Copp's  U.  S.  Mining  De- 
li.. 17. 
■  ll,..l.  An-.  16th,  L868,  tbid, 


§  258  MISCELLANEOUS   PROVISIONS.  359 

describing  the  case  by  its  title,  the  nature  of  the  contest,  and 
the  tract  involved  ;  and  thereafter  take  no  further  action  affect- 
ing the  disposal  of  the  land  until  instructed  by  the  Commissioner. 

Decisions  of  registers  and  receivers,  appeals  from. — Any 
person  making  application  to  file  upon  or  enter  a  tract  of  public 
land,  having  complied  with  the  law  and  regulations  touching 
the  presentation  of  such  applications,  and  feeling  aggrieved  by 
the  refusal  of  the  register  and  receiver  to  recognize  his  claim, 
or  by  any  order,  direction,  or  condition  affecting  the  same,  may 
appeal  from  the  action  of  those  officers  to  the  Commissioner  of 
the  General  Land  Office,  who  is  by  law  invested  with  the  super- 
vision and  control  of  all  matters  relating  to  the  disposal  of  the 
public  lands,  subject  to  the  direction  of  the  Secretary  of  the 
Interior.1 

For  the  purpose  of  enabling  such  appeal  to  be  taken  and  per- 
fected, the  register  and  receiver  will  indorse  upon  the  written 
application  the  date  when  jDresented  and  their  reasons  for  re- 
fusing it,  promptly  advising  the  parties  in  interest  of  the  facts, 
and  note  upon  their  record  a  memorandum  of  the  transaction. 
The  party  aggrieved  will  then  be  allowed  thirty  days  from  the 
receipt  of  notice  of  such  action  within  which  to  file  his  appeal 
to  the  Commissioner. 

The  appeal  should  be  in  writing,  and  should  set  forth  in  brief 
and  clear  terms  the  specific  points  of  exception  to  the  ruling 
appealed  from.  It  must  in  all  cases  be  filed  with  the  district 
officers,  to  be  forwarded  by  them  with  a  full  report  of  the  case 
to  the  office. 

This  report  should  recite  the  proceedings  had,  to  wit :  The 
application  and  rejection,  with  the  reasons  therefor,  and  also 
the  status  of  the  tract  involved  as  shown  by  the  records  of  the 
office ;  together  with  a  reference  to  all  entries,  filings,  annota- 
tions, memoranda,  and  correspondence  shown  by  such  record 
relating  thereto ;  so  as  to  direct  the  attention  of  the  Commis- 
sioner to  all  the  material  facts  and  issues  necessary  to  a  proper 
determination  of  the  questions  presented.  No  appeal  from  the 
decision  of  the  register  and  receiver  will  be  received  at  the 
General  Land  Office  unless  forwarded  through  the  local  officers 
in  the  manner  herein  prescribed. 

i  Rev.  Stats.  Sees.  453  and  2478. 


360  MISCELLANEOUS   PROVISIONS.  §  258 

The  report  should  be  forwarded  at  once  upon  the  filing  of  the 
appeal,  except  in  contested  cases  after  regular  hearing  ;  when, 
unless  all  parties  request  its  earlier  transmission,  it  should  not 
be  made  until  the  expiration  of  the  thirty  days  included  in  the 
notice,  in  order  that  all  parties  may  have  full  opportunity  to  ex- 
amine the  record  and  prepare  their  argument  upon  the  question 
at  issue.  All  documents  once  received  must  be  kept  on  file  with 
the  cases,  and  no  papers  will  be  allowed  under  any  circumstances 
to  be  removed  from  such  files  or  taken  from  the  custody  of  the 
register  and  receiver ;  but  access  to  the  same  under  proper  rules, 
so  as  not  to  interfere  with  necessary  public  business,  should 
be  permitted  to  the  parties  in  interest  under  the  supervision  of 
those  officers. 

Decisions  of  the  Commissioner  of  the  General  Land  Office, 
appeals  from. — Upon  any  question  relating  to  the  disposal  of 
the  public  lands,  appeal  from  the  decision  of  the  Commissioner 
of  the  General  Land  Office  will  lie  to  the  Secretary  of  the  In- 
terior, (Rev.  Stats.  Sees.  441,  2273)  except  in  cases  of  inter- 
locutory orders  and  decisions,  and  orders  for  hearing  or  other 
matters  resting  in  the  sound  discretion  of  the  Commissioner. 
Such  latter  cases  constitute  matters  of  exception  which  should 
be  noted,  and  they  will  be  considered  by  the  Secretary  on  re- 
view. 

The  appeal  is  required  to  be  made  in  writing,  fairly  and  spe- 
cifically stating  the  points  of  exception  to  the  decision  appealed 
from,  and  must  be  filed  either  with  the  register  and  receiver  for 
transmission,  or  with  the  Commissioner,  within  sixty  days 
from  receipt,  by  the  party  or  his  attorney,  of  the  notice  of  the 
decision. 

After  appeal  is  filed,  the  fact  of  its  receipt  and  pendency 
will  be  promptly  communicated  to  the  district  office  and  to  the 
parties,  and  thirty  days  from  the  service  of  such  notice  will  be 
allowed  for  the  filing  of  argument  on  the  points  involved  in  the 
controversy.  At  the  expiration  of  the  time  prescribed,  the  pa- 
pers and  record  will  be  forwarded  to  the  Secretary  of  the  In- 
terior. All  arguments  shall  be  filed  with  the  Commissioner 
within  the  time  specified  in  the  notice,  in  order  that  they  may 
be  referred  to  and  considered  in  transmitting  the  case  to  the 
Secretary,  if  deemed  expedient,   by  the  Commissioner.     Exam- 


§  258  MISCELLANEOUS    PROVISIONS.  361 

inatlon  of  cases  on  appeal  to  the  Secretary  will  be  facilitated  by 
filing  in  printed  form  such  argument  as  it  is  desired  to  have  con- 
sidered. 

Decisions  of  the  Commissioner  not  appealed  from  within  the 
period  prescribed  become  final,  and  the  case  will  be  regularly 
closed.     (Rev.  Stats.  Sec.  2273.) 

The  decision  of  the  Secretary  is  necessarily  final  so  far  as  re- 
spects the  action  of  the  Executive. 

Service  of  notice  under  the  foregoing  regulations. — Notice,  to 
be  properly  served,  must  be  brought  home  to  the  knowledge, 
actual  or  presumptive,  of  the  party,  so  as  to  bar  any  future  pur- 
suit of  his  application  before  the  officers  of  the  Department. 

It  should,  therefore,  be  personally  served  either  upon  the 
claimant  or  his  attorney,  in  every  case  where  such  service  is 
practicable,  and  the  acknowledgment  of  such  service  should  be 
taken  when  obtainable.  When  not  acknowledged  the  service 
may  be  proved  by  the  affidavit  of  the  person,  or  statement  of 
the  officer  serving  the  same,  duly  indorsed  upon  the  copy  of  such 
notice  returned  into  the  district  office. 

Service  by  mail,  when  in  regular  correspondence  with  the 
party  or  his  attorney,  will  be  held  sufficient.  In  other  cases, 
where  mail  service  is  resorted  to,  it  may  be  presumed  to  have 
reached  the  party  when,  after  proper  time,  no  question  respect- 
ing the  receipt  of  the  letter  may  appear  to  have  arisen,  and  its 
delivery  to  the  person  addressed  may  have  become  reasonably 
certain.  Should  there  be  probable  cause  for  doubt  respecting 
the  delivery  of  notice  by  mail,  such  publication  should  be  re- 
sorted to  as  will  satisfy  the  Courts  and  laws  of  the  State  or  Ter- 
ritory in  legal  proceedings  affecting  land  titles — proof  of  such 
publication  to  be  furnished  in  all  cases  to  the  Commissioner  of 
the  General  Land  Office  when  report  is  made  by  the  register 
and  receiver. 

In  making  report  of  the  expiration  of  time  under  these  rules, 
or  under  any  special  order,  sufficient  additional  time  should  be 
allowed  for  mail  delivery,  where  service  has  been  made  by  let- 
ter addressed  by  post.  Fifteen  days  will,  in  ordinary  cases,  be 
sufficient.  In  case  of  infrequent  mails  and  difficult  access,  longer 
time  will  be  found  necessary ;  and  careful  attention  and  discre- 
tion will  be  expected  on  the  part  of  registers  and  receivers  with 


362  MISCELLANEOUS   PROVISIONS.  §  258 

respect  to  this  matter,  so  that  in  all  cases  actual  service  of  the 
notice  required  may  be  reasonably  presumed. 

In  case  of  parties  known  or  presumed,  upon  good  informa- 
tion, to  be  absent  from  the  State  or  Territory,  publication,  ac- 
cording to  the  law  of  such  State  or  Territory  in  like  cases,  must 
be  had,  and  should  be  paid  for  by  the  opposing  claimant,  in 
order  that  his  claim  may  be  the  more  speedily  relieved  from 
embarrassment. 

Summary  of  reference  respecting  appeals,  notices,  etc.,  for 
convenience  of  parties  having  business  before  the  Department. — 
For  appeal  from  decision  of  register  and  receiver,  thirty  days. 

For  examination  of  papers  by  parties,  after  receipt  by  Com- 
missioner, thirty  days. 

For  appeal  to  Secretary  of  the  Interior,  sixty  days. 

For  argument  on  appeal  to  Secretary  before  transmission, 
thirty  days. 

For  transmission  of  notice  and  receipt  of  answer,  when  served 
by  mail,  fifteen  days. 

Should  anything  in  the  nature  of  the  circumstances  of  the 
case  require  instant  decision,  or  other  action,  the  usual  rule,  al- 
lowing thirty  days  from  receipt  of  papers  before  taking  them 
up  for  decision,  will  be  suspended.  Time  may  be  extended,  up- 
on proper  request,  at  the  discretion  of  the  Commissioner.  Con- 
tinuances will  be  allowed  by  the  district  officers,  in  proper  cases, 
subject  to  the  exercise  of  a  sound  discretion. 

Hearings  to  establish  the  character  of  lands. — Beside  the  gen- 
eral instructions  given  above,  the  following  are  specially  applica- 
ble to  mineral  lands :  Sec.  2335  provides  that  "  all  affidavits 
required  under  this  chapter  may  be  verified  before  any  officer 
authorized  to  administer  oaths  within  the  land  district  where 
the  claims  may  be  situated,  and  all  testimony  and  proofs  may 
be  taken  before  any  such  officer,  and,  when  duly  certified  by 
the  officer  taking  the  same,  shall  have  the  same  force  and  effect 
ae  if  taken  before  the  register  and  receiver  of  the  Land  Office. 
In  cases  of  contesf  as  to  the  mineral  or  agricultural  character 
ill  Land,  the  testimony  and  proofs  may  be  taken,  as  herein 
provided,  on  personal  notice  <>f  at  least  ten  days  to  the  opposing 
party;  or,  if  such  party  cannot  be  found,  then  by  publication 
of  at  least  once  a  week  for  at  least  thirty  days  in  a  newspaper 


§  258  MISCELLANEOUS    PROVISIONS.  363 

to  be  designated  by  the  register  of  the  land  office  as  published 

nearest  to  the  location  of  such  land,  and  the  register  shall  require 

proof   that  such  notice  has   been    given."     Testimony  for    the 

purpose  of  disproving  the  mineral  character  of  lands  may  be 

taken  before  any  officer  authorized  to  administer  oaths  within 

the  land  district,  and  where   the  residence   of  the   parties  who 

claim  the  land  to  be  mineral  is  known,  such  evidence  may  be 

taken  without  publication,  ten  days  after  the  mineral  claimants 

or  affiants  shall   have  been  personally  notified  of  the  time  and 

place   of    such   hearing ;  but   in   cases   where   such   affiants   or 

claimants  cannot  be  served  with  personal  notice,  or  where  the 

land  applied  for  is  returned  as  mineral  upon  the  township  plat, 

or  where  the  same   is  now  or  may  hereafter  be  suspended  for 

non-mineral  proof,  by  order   of  the  office,  then  the  party  who 

claims  the  ricdit  to  enter  the  land  as  agricultural  will  be  re- 
ts o 

quired,  at  his  own  expense,  to  publish  a  notice  once  each  week, 
for  five  consecutive  weeks,  in  the  newspaper  of  largest  circula- 
tion published  in  the  county  within  which  said  land  is  situated ; 
or,  if  no  newspaper  is  published  within  such  county,  then  in  a 
newspaper  published  in  an  adjoining  county;  the  newspaper  in 
either  case  to  be  designated  by  the  register ;  which  notice  must 
be  clear  and  specific,  giving  the  name  and  address  of  the  claim- 
ant, the  designation  of  the  subdivision  embraced  by  his  filing, 
the  names  of  any  miners  or  mining  companies  whose  claims  or 
improvements  are  upon  the  land,  or  in  the  immediate  vicinity 
thereof,  the  names  of  the  parties  who  filed  the  affidavits  that 
the  land  is  mineral,  and  finally  the  notice  should  name  a  day, 
which  shall  not  be  not  less  than  thirty  days  from  the  date  of  the 
first  insertion  of  said  notice  in  such  newspaper,  upon  which  tes- 
timony will  be  taken  to  determine  the  facts  as  to  the  mineral  or 
non-mineral  character  of  the  land.  The  notice  must  also  state 
before  what  officer  such  hearing  will  be  held,  and  the  place  of 
such  hearing.  A  copy  of  this  notice  must  be  posted  in  a  con- 
spicuous place  upon  each  forty-acre  subdivision  claimed,  during- 
the  publication  of  the  notice,  proof  of  which  must  be  made 
under  oath  by  at  least  two  persons,  who  will  state  when  the 
notice  was  posted  and  where  posted.  At  the  hearing  there 
must  be  filed  the  affidavit  of  the  publisher  of  the  paper  that  the- 
said  notice  was   published  for  the  required  time,  stating  when. 


364  MISCELLANEOUS    PROVISIONS.  §  258 

and  for  how  long  such  publication  was  made,  a  printed  copy 
thereof  to  be  attached  and  made  a  part  of  the  affidavit.  In 
every  case,  where  practicable,  in  addition  to  the  foregoing,  per- 
sonal notice  must  be  served  upon  the  mineral  affiants,  and  upon 
any  parties  who  may  be  mining  upon  or  claiming  the  land. 

At  the  hearing  the  claimants  and  witnesses  will  be  thoroughly 
examined  with  regard  to  the  character  of  the  land;  whether 
the  same  has  been  thoroughly  prospected ;  whether  or  not  there 
exists  within  the  tract  or  tracts  claimed  any  lode,  or  vein  of 
quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar, 
lead,  tin,  or  copper,  or  other  valuable  deposit,  which  has  ever 
been  claimed,  located,  recorded,  or  worked  ;  whether  such  work 
is  entirely  abandoned,  or  whether  occasionally  resumed ;  if  such 
lode  does  exist,  by  whom  claimed,  under  what  designation,  and 
in  which  subdivision  of  the  land  it  lies ;  whether  any  placer 
mine  or  mines  exist  upon  the  land  ;  if  so,  the  character  thereof, 
whether  of  the  shallow  surface  description,  or  of  the  deep 
cement,  blue  lead,  or  gravel  deposits ;  to  what  extent  mining  is 
carried  on  when  water  can  be  obtained,  and  what  the  facilities 
are  for  obtaining  water  for  mining  purposes ;  upon  what  par- 
ticular ten-acre  subdivisions  mining  has  been  done,  and  at  what 
time  the  land  was  abandoned  for  mining  purposes,  if  abandoned 
at  all.  The  testimony  should  also  show  the  agricultural  capac- 
ities of  the  land,  what  kind  of  crops  are  raised  thereon,  and  the 
value  thereof ;  the  number  of  acres  actually  cultivated  for  crops 
of  cereals,  or  vegetables,  and  within  which  particular  ten-acre 
subdivisions  such  crops  are  raised  ;  also,  which  of  these  subdi- 
visions embrace  his  improvements,  giving  in  detail  the  extent 
and  value  of  his  improvements,  such  as  house,  barn,  vineyard, 
orchard,  fencing,  etc. 

It  is  thought  by  the  Department  that  bona  fide  settlers  upon 
lands  really  agricultural  will  be  able  to  show,  by  a  clear,  logi- 
cal, and  succinct  chain  of  evidence,  that  their  claims  are  founded 
upon  law  and  justice  ;  while  parties  who  have  made  little  or  no 
permanent  agricultural  improvements,  and  who  only  seek  title 
for  speculative  purposes,  on  account  of  the  mineral  deposits 
known  to  themselves  t<>  be  contained  in  the  land,  will  be  de- 
feated  in  their  intentions. 

The  testimony  should  be  as  full  and  complete  as  possible,  and 


§  258  MISCELLANEOUS   PROVISIONS.  365 

in  addition  to  the  leading  points  indicated  above,  everything  of 
importance  bearing  upon  the  question  of  the  character  of  the 
land  should  be  elicited   at  the  hearing. 

Where  the  testimony  is  taken  before  an  officer  who  does  not 
use  a  seal,  other  than  the  register  and  receiver,  the  official  char- 
acter of  such  officer  must  be  attested  by  a  clerk  of  a  Court  of 
Record,  and  the  testimony  transmitted  to  the  register  and  re- 
ceiver, who  will  thereupon  examine  and  forward  the  same  to  the 
General  Land  Office,  with  their  joint  opinion  as  to  the  charac- 
ter of  the  land  as  shown  by  the  testimony. 

When  the  case  comes  before  that  office  such  an  award  of  the 
land  will  be  made  as  the  law  and  the  facts  may  justify  ;  and  in 
cases  where  a  survey  is  necessary  to  set  apart  the  mineral  from 
the  agricultural  land  in  any  forty-acre  tract,  the  necessary  in- 
structions will  be  issued  to  enable  the  agricultural  claimant,  at 
his  own  expense,  to  have  the  work  done  at  his  option,  either  by 
United  States  deputy,  county,  or  other  local  surveyor  ;  the  sur- 
vey in  such  case  may  be  executed  in  such  manner  as  will  segre- 
gate the  portion  of  land  actually  containing  the  mine,  and  used 
as  surface  ground  for  the  convenient  working  thereof,  from  the 
remainder' of  the  tract,  which  remainder  will  be  patented  to  the 
agriculturist  to  whom  the  same  may  have  been  awarded,  sub- 
ject, however,  to  the  condition  that  the  land  may  be  entered 
upon  by  the  proprietor  of  any  vein  or  lode,  for  which  a  patent 
has  been  issued  by  the  United  States  for  the  purpose  of  ex- 
tracting and  removing  the  ore  from  the  same,  where  found  to 
penetrate  or  intersect  the  land  so  patented  as  agricultural,  as 
stipulated  by  the  Mining  Act. 

Such  survey,  when  executed,  must  be  properly  sworn  to  by  the 
surveyor,  either  before  a  notary  public,  officer  of  a  Court  of 
Record,  or  before  the  register  or  receiver,  the  deponent's  char- 
acter and  credibility  to  be  properly  certified  to  by  the  officer 
administering  the  oath. 

Upon  the  filing  of  the  plat  and  field-notes  of  such  survey, 
duly  sworn  to  as  aforesaid,  the  same  must  be  transmitted  to  the 
Surveyor-General  for  his  verification  and  approval ;  who,  if  he 
finds  the  work  correctly  performed,  will  properly  mark  out  the 
same  upon  the  original  township  plat  in  his  office,  and  furnish 
authenticated  copies  of  such  plat  and  description  both   to   the 


366  MISCELLANEOUS    PROVISIONS.  §  258 

proper  local  land   office  and  the   General  Land  Office,   to  be 
affixed  to  the  duplicate  and  triplicate  township  plats  respectively. 

In  cases  where  a  portion  of  a  forty-acre  tract  is  awarded  to 
an  agricultural  claimant,  and  he  causes  the  segregation  thereof 
from  the  mineral  portion,  as  aforesaid,  such  agricultural  portion 
will  not  be  given  a  numerical  designation,  as  in  the  case  of  sur- 
veyed mineral    claims,   but    will    simply  be   described    as    the 

"  Fractional  quarter  of  the quarter  of  section , 

in    township   ,  of   range   meridian,  containing  

acres,  the  same  being  exclusive  of  the  land  adjudged  to  be  min- 
eral in  said  forty-acre  tract." 

The  surveyor  must  correctly  compute  the  area  of  such  agri- 
cultural portion,  which  computation  will  be  verified  by  the 
Surveyor-General.  After  the  authenticated  plat  and  field-notes 
of  the  survey  have  been  received  from  the  Surveyor-General, 
the  office  will  issue  the  necessary  order  for  the  entry  of  the  land, 
and  in  issuing  the  receiver's  receipt  and  register's  patent  certifi- 
cate, the  register  will  be  governed  by  the  description  of  the  land 
given  in  the  order  from  that  office. 

The  fees  for  taking  testimony  and  reducing  the  same  to  writ- 
ing in  these  cases  will  have  to  be  defrayed  by  the  parties  in 
interest.  Where  such  testimony  is  taken  before  any  other 
officer  than  the  register  and  receiver,  the  register  and  receivor 
will  be  entitled  to  no  fees. 

If,  upon  a  review  of  the  testimony  at  the  General  Land 
Office,  a  ten-acre  tract  should  be  found  to  be  properly  mineral 
in  character,  that  fact  will  be  no  bar  to  the  execution  of  the 
settler's  legal  right  to  the  remaining  non-mineral  portion  of  his 
elaim,  if  contiguous.  The  fact  that  a  certain  tract  of  land  is 
decided  upon  testimony  to  be  mineral  in  character,  is  by  no 
means  equivalent  to  an  award  of  the  land  to  a  miner. 

A  miner  is  compelled  by  law  to  give  sixty  days  publication  of 
notice,  and  posting  of  diagrams  mid  notices  as  a  preliminary 
-t.-p:  ;iikI  then  before  he  can  enter  the  land,  he  must  show  that 
the  Land  yields  mineral;  tli;it  lie  is  entitled  to  the  possessory 
ri<dii  thereto  in  virtue  of  compliance  with  local  customs  or  rules 
of  miners,  or  by  virtue  of  the  Statute  of  Limitations;  that  he 
or  hie  grantors  have  expended,  in  actual  Labor  and  improve- 
ment-, .hi  amount  of  not  Less  than  live  hundred  dollars  thereon, 


§  259  MISCELLANEOUS    PROVISIONS.  367 

and  that  the  claim  is  one  in  regard  to  which  there  is  no  contro- 
versy or  opposing  claim.  After  all  these  proofs  are  met  he  is 
entitled  to  have  a  survey,  made  at  his  own  cost,  where  a  survey 
is  required,  after  which  he  can  enter  and  pay  for  the  land  em- 
braced by  his  claim.1 

§  259.  Appeals,  exceptions,  evidence. — An  appeal  brings 
before  the  Commissioner  the  entire  proceedings  which  have 
taken  place  prior  to  the  date  of  the  order  appealed  from, 
and  all  exceptions  to  any  of  the  proceedings  must  be  presented 
and  insisted  upon  before  the  Commissioner  on  the  hearing  of 
such  appeal,  and,  unless  so  presented,  are  to  be  deemed  waived. 
After  an  appeal  is  dismissed,  a  party  cannot  go  back  and  appeal 
from  a  former  order.2 

Appellants,  taking  appeal  from  the  General  Land  Office  to 
the  Secretary  of  the  Interior,  must  notify  the  office  in  writing 
of  the  points  of  exception  to  its  action,  within  the  time  allowed 
for  appeal.  A  notice  that  "  you  will  please  direct  my  appear- 
ance to  be  registered  and  cause  an  appeal  from  said  decision  to 
be  entered  in  due  form,  the  points  and  argument  thereupon  to 
be  submitted  thereafter,"  will  not  be  considered  nor  recognized 
as  an  appeal.3 

No  new  or  additional  evidence  can  be  submitted  to  the  Sec- 
retary of  the  Interior  on  appeal,  otherwise  his  decision  would 
be  an  original  decision,  and  not  a  review  of  that  of  the  Commis- 
sioner. New  affidavits  cannot  be  considered  on  the  argument 
on  appeal.4 

In  the  case  of  the  Overman  Silver  Mining  Co.  v.  the  Darda- 
nelles Mining  Company,  the  question  was  presented  whether  the 
latter  company,  having  once  appealed  from  a  decision  made  by 
the  local  officers,  and  that  appeal  having  been  dismissed,  could 
go  back  of  the  decision  appealed  from  and  appeal  from  another 
decision  made  prior  to  that  one,  or   whether  the  first  appeal 

1  Instructions  Feb.  1st,  1877. 

2  Decision  of  Acting  Secretary,  July  19th,  1873,  reversing  decision  of  Acting 
Commissioner,  and  Decision  of  Commissioner,  April  11th,  and  June  3d,  1873, 
Copp's  U.  S.  Mining  Decisions,  181,  182,  186. 

3  In  re  Zella  Mine,  Mountain  Tiger  Mine,  Rockwell  Mine,  Decision  of  Com- 
missioner, August  18th,  1873,  Copp's  U.  S.  Mining  Decisions,  217. 

4  Decision  of  Commissioner,  Aug.  21st,  1872,  Copp's  U.  S.  Mining  Decisions,  136. 


368  MISCELLANEOUS    PROVISIONS.  §  260 

brought  the  whole  case  before  the  Commissioner  and  gave  him 
jurisdiction  thereof,  and  required  that  all  objections  to  the  pro- 
ceedings up  to  that  date  should  be  presented  to  the  Commis- 
sioner, or,  if  not  presented,  be  regarded  as  waived.  The  lat- 
ter view  was  adopted  as  the  true  one,  any  other  practice  being 
condemned  as  contrary  to  the  analogies  derived  from  legal  pro- 
ceedings, inconvenient  in  practice,  and  productive  of  a  multipli- 
city of  appeals  in  a  single  case.1 

§  260.  Fees  of  registers  and  receivers. — The  fees  payable 
to  the  register  and  receiver  for  filing  and  acting  upon  applica- 
tions for  mineral  land  patents,  made  under  Act  of  1872,  are  five 
dollars  to  each  officer,  to  be  paid  by  the  applicant  for  patent  at 
the  time  of  filing,  and  the  like  sum  of  five  dollars  is  payable  to 
each  officer  by  an  adverse  claimant  at  the  time  of  filing  his  ad- 
verse claim.  All  fees  or  charges  may  be  paid  in  United  States 
currency. 

The  register  and  receiver  is  required  at  the  close  of  each 
month  to  forward  to  the  General  Land  Office  an  abstract  of 
mining  applications  filed,  and  a  register  of  receipts,  accompanied 
with  an  abstract  of  mineral  lands  sold,  and  an  abstract  of  ad- 
verse claims  filed.  The  fees  and  purchase-money  received  by 
registers  and  receivers  must  be  placed  to  the  credit  of  the 
United  States  in  the  receiver's  monthly  and  quarterly  account, 
charging  up  in  the  disbursing  account  the  sums  to  which  the 
register  and  receiver  may  be  respectively  entitled  as  fees  and 
commissions,  with  limitations  in  regard  to  the  legal  maximum.2 

Registers  and  receivers,  in  addition  to  their  salaries,  are  to  be 
allowed  each  the  following  fees  and  commissions: 

1-t.  For  each  declaratory  statement  filed,  and  for  services  in 
acting  on  pre-emption  claims,  one  dollar. 

2d.  On  all  moneys  received  at  each  receiver's  office,  a  com- 
mission  of  one  per  cent. 

3d.  A  commission,  to  be  paid  by  the  homestead  applicant  at 
the  time  of  entry,  of  one  per  centum  on  the  cash  price,  as  fixed 

lOverman  Silver  Mining  Co;  v.  Dardanelles  Silver  Mining  Co.,  Decision  of 
Acting  Secretary,  July  L9th,  L873,  reversing  on  tins  point.  Decision  of  Acting 
ComrnJ   ti n   June3d,  1873,  Copp's  U.  S.  Mining  Decisions,  181,  182,  186. 

i  [nstructionfl  February  1st,  L877,  Subdivisions  82,  92;  instructions  June  10th, 
1872,  Subdivisions  80,  81,  82,  83. 


§  260  MISCELLANEOUS    PROVISIONS.  369 

by  law,  of  the  land  applied  for ;  and  a  like  commission  when 
the  claim  is  finally  established,  and  the  certificate  therefor  issued 
as  the  basis  of  a  patent.1 

4th.  The  same  commission  on  lands  entered  under  any  law  to 
encourage  the  growth  of  timber  on  western  prairies,  as  allowed 
when  the  like  quantity  of  land  is  entered  with  money.2 

5th.  For  locating  military  bounty-land  warrants,  issued  since 
the  11th  day  of  February,  1847,  and  for  locating  agricultural 
college-land  scrip,  the  same  commission,  to  be  paid  by  the  holder 
or  assignee  of  each  warrant  or  scrip  as  is  allowed  for  sales  of 
the  public  lands  for  cash,  at  the  rate  of  one  dollar  and  twenty- 
five  cents  per  acre. 

6th.  In  donation  cases,  for  each  final  certificate  for  160  acres 
of  land,  five  dollars  ;  320  acres,  ten  dollars ;  640  acres,  fifteen 
dollars. 

7th.  In  the  location  of  lands  by  States  and  corporations,  under 
grants  from  Congress  for  railroad  and  other  purposes,  (except 
for  agricultural  colleges)  for  each  final  location  of  160  acres,  to 
be  paid  by  the  State  or  corporation  making  such  location,  one 
dollar. 

8th.  For  superintending  public  land  sales  at  their  respective 
offices,  five  dollars  per  diem,  and  to  each  receiver,  mileage  in 
going  to  and  returning  from  depositing  the  public  moneys  re- 
ceived by  him.3 

9th.  For  filing  and  acting  upon  each  application  for  patent  or 
adverse  claim  filed  for  mineral  lands,  to  be  paid  by  the  respect- 
ive parties,  five  dollars.4 

10th.  Registers  and  receivers  are  allowed,  jointly,  at  the  rate 
of  fifteen  cents  per  hundred  words  for  testimony  reduced  by 
them  to  writing  for  claimants,  in  establishing  pre-emption  and 
homestead  rights.0 

1  Rev.  Stats.  2238,  Subdivisions  9-11,  same  as  Sec.  12,  Act  of  1872,  17  U.  S. 
Stats.  95.     See  Sec.  2334,  Rev.  Stats. 

2  See  Registers'  and  Receivers'  Fees  for  Affidavits,  etc.,  Decision  of  the  Com- 
missioner, Dec.  10th,  1869,  Copp's  U.  S.  Mining  Decisions,  26. 

s  Sec.  12,  Act  of  May  10th,  1872,  17  U.  S.  Stats.  95. 

4  See  Sec.  2334. 

5  For  fees  under  Acts  of  1866  and  1870,  see  Instructions  of  Commissioner,  July 
25th,  1870,  Copp's  U.  S.  Mining  Decisions,  251;  Act  of  1870,  fifteenth  section. 

W.  C— 24. 


370  MISCELLANEOUS    PROVISIONS.  §§  261-2 

11  tli.  A  like  fee  when  such  writing  is  done  in  the  Land  Office 
in  establishing  claims  for  mineral  lands. 

12th.  Registers  and  receivers  in  California,  Oregon,  Washing- 
ton, Nevada,  Colorado,  Idaho,  New  Mexico,  Arizona,  Utah, 
"Wyoming,  and  Montana,  fifty  per  cent,  additional  on  fees  and 
commissions  named  in  Subdivisions  1,  3,  and  10. 

It  was  early  decided  under  the  Mining  Act  of  1866,  that,  as 
it  made  no  specific  provisions  on  the  subject  of  fees,  the  latter 
must  be  the  same  as  were  specifically  provided  for  like  services 
under  other  acts  of  Congress. 

A  charge  allowed  registers  and  receivers  per  hundred  words 
was  held  not  limited  to  testimony  in  Courts,  but  was  applicable  to 
all  written  matter  necessary  to  prepare  the  case  for  administra- 
tive action  in  the  Land  Office,  whether  in  the  form  of  affidavits, 
certificates,  or  other  appropriate  and  necessary  writing,  if  pre- 
pared by  the  register  and  receiver,  or  according  to  their  direc- 
tion and  under  their  supervision.1 

§  261.  Payment  pending  contest. — Agricultural  claim- 
ants making  payment  to  the  local  officers,  pending  a  contest  as 
to  the  mineral  character  of  the  lands,  and  before  the  Commis- 
sioner has  acted,  only  acquire  a  vested  right  on  condition  that 
the  Commissioner,  or  other  superior  authority,  shall  finally  con- 
cur in  the  opinion  of  the  local  officers.  To  hold  otherwise 
would  be  to  deprive  the  Government  of  all  protection  against 
the  hasty  and  ill-advised  acts  of  its  inferior  officers.2 

§  262.  Decisions  of  the  Land  Department — Their  au- 
thoritative character. — The  action  of  the  officers  of  the  Land 
Office  is  not  necessarily  conclusive  upon  the  parties.  Courts  of 
Equity  may  go  behind  them  and  inquire  into  proceedings  by 
which  titles  are  sought  to  be  vested,  and  afford  relief  in  proper 
cases.  This  may  be  considered  the  settled  doctrine  of  the  Su- 
preme  Court  of  the  United  States.3 

The  officers  of  the  Government  arc  the  agents  of  tin;  law. 
They  cannot  act  beyond  its  provisions,  nor  make  compromises 

i|).i.  ion  Commissioner,  !>>■'■.  LOth,  L889,  Copp's  IT.  S.  Mining  Decisions, 'J >. 
i  >.  <jj    "ii  oi  AABistanl  Secretary  Tutcrior,  April  1.9th,  L872,  Copp's  U.  S.  Min- 
ing i  lecisions,  88. 

;  Lindsay  v.  Jtowcs,  2  Black.  0".  S.  557;  Cunningham  V.  Ashley,  14  now.  377. 


§  262  MISCELLANEOUS    PROVISIONS.  871 

not  sanctioned  by  it.  The  Courts  will  inquire  into  the  facts  of 
disputed  entries,  notwithstanding  the  decision  of  the  register 
and  receiver.1 

In  Garland  v.  Wynn,2  Mr.  Justice  Catron,  in  delivering  the 
opinion  of  the  Court,  said:  "The  general  rule  is,  that  where 
several  parties  set  up  conflicting  claims  to  property,  with  which 
a  special  tribunal  may  deal,  as  between  one  party  and  the  Gov- 
ernment, regardless  of  the  rights  of  others,  the  latter  may  come 
into  the  ordinary  Courts  of  Justice,  and  litigate  the  conflicting 
claims.  Such  was  the  case  of  Comegys  v.  Vasse,  1  Peters  U. 
S.  212.  *  *  *  Nor  do  the  regulations  of  the  Commissioner 
of  the  General  Land  Office,  whereby  a  party  may  be  heard  to 
prove  his  better  claim  to  enter,  oust  the  jurisdiction  of  the 
Courts  of  Justice.  We  announce  this  to  be  the  settled  doctrine 
of  this  Court." 

In  Lyttle  v.  Arkansas,3  the  same  member  of  the  Court,  deliv- 
ering its  opinion,  says  :  "Another  preliminary  question  is  pre- 
sented on  this  record,  namely,  whether  the  adjudication  of  the 
register  and  receiver  .  *  *  is  subject  to  revision  in  Courts 
of  justice,  etc.  *  *  We  deem  this  question  too  well  settled 
in  the  affirmative  for  discussion."  4 

In  the  case  of  Johnson  v.  Towsley,5  the  whole  question  was 
again  reviewed.  The  following  acts  of  Congress  were  examined : 
the  Act  of  September  4th,  1841,  (5  Stat,  at  Large,  455)  and 
entitled,  An  Act  to  appropriate  the  proceeds  of  the  public  lands, 
and  to  grant  pre-emption  rights  ;  and  a  subsequent  Act  of  March 
3d,  1843,  (5  Stat,  at  Large,  620)  entitled,  An  Act  to  authorize 
the  investigation  of  alleged  frauds,  under  the  pre-emption  laws, 
and  for  other  purposes,  Sees.  4,  5 ;  the  Act  of  June  12th,  1858 
(11  Stat,  at  Large,  326,  Sec.  10)  ;  the  twenty-fifth  section  of 
the  Judiciary  Act  of  1789,  and  the  second  section  of  the  Act  of 
February   5th,   1867,  re-enacting  that  section.6      The   case    of 

1  Barnard's  Heirs  v.  Ashley's  Heirs,  18  How.  U.  S.  43. 

2  20  How.  IT.  S.  8. 

«  22  How.  U.  S.  192. 

4  See,  also,  Magwire  v.  Tyler,  1  Black  U.  S.  195;  Cousin  v.  Blanc's  Executor, 
19  How.  II.  S.  202;  Tate  v.  Carney,  24  How.  IT.  S.  357;  3  Op.  Attorneys-General, 
93,  104.  064;  1  Op.  Attorneys-General,  718;  Wilcox  v.  Jackson,  13  Pet.  IT.  S.  498; 
Doe  v.  Eslava,  9  How.  421. 

5  13  Wall.  IT.  S.  72. 

6  See  the  two  acts  in  parallel  columns  in  Trebilcock  v.  Wilson,  12  Wall.  687. 


372  MISCELLANEOUS   PROVISIONS.  §  262 

Barnard's  Heirs  v.  Ashley's  Heirs,1  was  also  referred  to.  The 
Court  said :  "  There  has  always  existed,  in  the  Courts  of  Equity, 
the  power  in  certain  classes  of  cases  to  inquire  into  and  correct 
mistakes,  injustice,  and  wrong,  in  both  judicial  and  executive 
action,  however  solemn  the  form  which  the  result  of  that  action 
may  assume,  when  it  invades  private  rights ;  and  by  virtue  of 
this  power  the  final  judgments  of  Courts  of  Law  have  been 
annulled  or  modified,  and  patents  and  other  important  instru- 
ments issuing  from  the  crown,  or  other  executive  branch  of  the 
government,  have  been  corrected,  or  declared  void,  or  other 
relief  granted.  No  reason  is  perceived  why  the  action  of  the 
Land  Office  should  constitute  an  exception  to  this  principle.  In 
dealing  with  the  public  domain  under  the  system  of  laws  en- 
acted by  Congress  for  their  management  and  sale,  that  tribu- 
nal decides  upon  private  rights  of  great  value  ;  and  very  often, 
from  the  nature  of  its  functions,  this  is  by  a  proceeding  essen- 
tially ex  parte,  and  peculiarly  liable  to  the  influence  of  frauds, 
false  swearing,  and  mistakes  :  these  are  among  the  most  ancient 
and  well-established  grounds  of  the  special  jurisdiction  of 
Courts  of  Equity  just  referred  to,  and  the  necessity  and  value 
of  that  jurisdiction  are  nowhere  better  exemplified  than  in  its 
application  to  cases  arising  in  the  Land  Office.  It  is  very  well 
known  that  these  officers  do  not  confine  themselves  to  determin- 
ing, before  a  patent  issues,  who  is  entitled  to  receive  it ;  but  they 
frequently  assume  the  right,  long  after  a  patent  has  issued  and 
the  legal  title  passed  out  of  the  United  States,  to  recall  or  set 
aside  the  patent,  and  issue  one  to  some  other  party,  and  if  the 
holder  of  the  first  patent  refuses  to  surrender  it,  they  issue  a 
second.  In  such  a  case  as  this,  have  the  Courts  no  jurisdiction? 
If  they  have  not,  who  shall  decide  the  conflicting  claims  to  the 
land?  If  the  land  officers  can  do  this  a  few  weeks  or  a  few 
months  afterthe  first  patent  has  issued,  what  limit  is  there  to 
their  power  over  rights?  (Stark  v.  Starrs,  6  Wall.  402.) 
Si  .  also,  Lytic  v.  Arkansas,  22  How.  192  ;  Garland  v.  Wynn, 
20  Eow.  8;  Lindsay  v.  Hawes,  2  Black,  559 ;  Finley  v.  Wil- 
liams, 9  Cranch,  L64 ;  McArthur  v.  Browdcr,  4  Wheat.  488; 
!!,,,, i  y.  Wickliffe,  2    Peters,  201  ;  Green  v.   Liter,    8  Cranch, 

|  18  Bow.  r.  s.  45. 


§   262  MISCELLANEOUS   PROVISIONS.  373 

229 ;  Minnesota  v.  Bachelder,  1  Wall.  109 ;  Silver  v.  Ladd,  7 
Wall.  219. 

"  This  Court  has  at  all  times  been  careful  to  guard  itself 
against  an  invasion  of  the  functions  confided  by  law  to  other 
departments  of  the  Government ;  and,  in  reference  to  the  pro- 
ceedings before  the  officers  intrusted  with  the  charge  of  selling 
the  public  lands,  it  has  frequently  and  firmly  refused  to  interfere 
with  them  in  the  discharge  of  their  duties,  either  by  mandamus 
or  injunction,  so  long  as  the  title  remained  in  the  United  States, 
and  the  matter  was  rightfully  before  those  officers  for  decision. 
On  the  other  hand,  it  has  constantly  asserted  the  rights  of  the 
proper  Courts  to  inquire,  after  the  title  had  passed  from  the 
Government,  and  the  question  become  one  of  private  right, 
whether,  according  to  the  established  rules  of  equity,  and  the 
acts  of  Congress  concerning  the  public  lands,  the  party  holding 
that  title  should  hold  absolutely  as  his  own,  or  as  trustee  for 
another.  And  we  are  satisfied  that  the  relations  thus  estab- 
lished between  the  Courts  and  the  Land  Department  are  not 
only  founded  on  a  just  view  of  the  duties  and  powers  of  each, 
but  are  essential  to  the  ends  of  justice,  and  to  a  sound  adminis- 
tration of  the  law." 

The  decisions  of  the  Supreme  Court  of  the  United  States 
were  said  to  establish  the  following  propositions  : 

1.  That  the  judiciary  will  not  interfere,  by  mandamus,  injunc- 
tion, or  otherwise,  with  the  officers  of  the  Land  Department  in 
the  exercise  of  their  duties,  while  the  matter  remains  in  their 
hands  for  decision. 

2.  That  their  decision  on  the  facts,  which  must  be  the  foun- 
dation of  their  action,  unaffected  by  fraud  or  mistake,  is  conclu- 
sive in  the  Courts. 

3.  But  that  after  the  title  has  passed  from  the  Government 
to  individuals,  and  the  question  has  become  one  of  private  right, 
the  jurisdiction  of  Courts  of  Equity  may  be  invoked  to  ascer- 
tain if  the  patentee  does  not  hold  in  trust  for  other  parties.  If 
it  appear  that  the  party  claiming  the  equity  has  established  his 
right  to  the  land  to  the  satisfaction  of  the  Land  Department,  in 
the  true  construction  of  the  acts  of  Congress,  but  that,  by  an 


374  MISCELLANEOUS    PROVISIONS.  §  263-4 

erroneous  construction,  the  patent  has  been  issued  to  another, 
the  Court  will  correct  the  mistake.1 

Decisions  of  Courts  conclusive. — The  Land  Office  can  neither 
supervise  nor  disregard  the  decisions  rendered  by  the  Courts  in 
cases  of  conflicting  claims  to  the  possession  of  mining  property 
under  local  customs,  and  no  patent  can  be  issued  in  the  face  of 
such  decisions.2 

The  circular  instructions  issued  from  the  Land  Office  apply 
to  all  United  States  lands,  whether  surveyed  or  unsurveyed,  con- 
taining mineral  deposits  in  quantities  sufficient  to  lead  to  their 
development  as  mines,  and  bring  them  under  the  operation  of 
the  local  mining  customs.3 

§  263.  Right  of  inspection. — The  Land  Office  does  not  at- 
tempt to  interfere  with  the  right  of  mine-owners  to  exercise  the 
right  of  ownership  and  possession  of  mining  premises  claimed 
by  them,  so  long  as  they  comply  with  the  requirements  of  law. 
Under  such  circumstances,  the  register  is  authorized  in  refusing 
to  grant  a  motion  for  the  privilege  of  a  party  to  visit  the  in- 
terior of  another's  mine.4 

§  264.  Mining  claims  in  river-beds. — The  mere  fact  that 
the  banks  of  a  stream  are  meandered  is  not  conclusive  of  its 
navigability.  The  question  is  one  of  fact.  Rivers  are  deemed 
navigable  waters  of  the  United  States  when  they  are  used  or 
are  susceptible  of  being  used  in  their  ordinary  condition  as 
highways  for  commerce  between  the  States.  The  shores  of 
navigable  rivers  and  the  soil  under  them  were  not  granted  by 
the  Constitution  to  the  United  States,  but  were  reserved  to  the 
States  respectively,  and  new  States  have  the  same  rights,  sov- 
ereignty and  jurisdiction  over  this  subject  as  the  original  ones.5 

1  .Minnesota  v.  Batchelder,  1  Wall.  109;  Silver  v.  Ladd,  7  Wall.  219.    See  also 

Secretary  u.  McGarrahan,  9  Wall.  298;  Hestres  v.  Breiman,  50  Cal.  211 ;  Vance 

V.  Eohlberg,  M.  346;  Weaver  r.  Kaircliild,  lil.  ">iio  ;  Hosnicr  v.  Wallace,  47  Cal. 

401  ;  Parker  v.  Duff,  [d.  554  ;  Litchfield  o.  Register  and  Receiver,  Woolvv.  C.  C. 

Bhepley  u.  Cowan,  1  <>ttn.  330. 

-  in  re  Lnimitable  Company,  Decision  of  Commissioner,  Jan.  26th,  L869,  Copp's 
r.  s.  Mining  I  decisions,  19. 

8  Decision  of  Commissi r.  January  28th,  L869,  Copp's  U.  S.  Mining  Decisions, 

19 

'In  re  Brunswick  Mine,  Decision  Oct.  19th,  L876,  3 Copp's  Land-owner,  114. 
.    i  >ani<  I  I;  .11.  LO  Wallace,  U.  8.  B57;  The  Montello,  U  Ibid.  411;  Pollard's 


§§  265-6  MISCELLANEOUS    PROVISIONS.  375 

The  Land  Office  will  not  in  any  way  complicate  the  full  jur- 
isdictional rights  in  navigable  rivers  in  territorial  limits,  but 
which  in  the  future  must  fall  within  the  boundaries  of  a  new 
State,  by  an  attempted  sale  of  any  portions  of  the  beds  of  such 
streams.  The  ninth  section  of  the  Act  approved  May  18th, 
1796,  (1  Stats,  at  L.  468)  furnishes  a  rule  upon  the  subject  of 
the  proprietorship  of  the  stream  and  the  bed  of  non-navigable 
rivers  :  "  In  all  cases  where  the  opposite  banks  of  any  stream 
not  navigable  shall  belong  to  different .  persons,  the  stream  and 
the  bed  thereof  shall  become  common  to  both." 

§  265.  Timber  on  mineral  land — Railroad  companies. 

— Mineral  lands  do  not  pass  to  the  Central  Pacific  Railroad 
Company  by  virtue  of  its  grant,  but  the  timber  being  or  grow- 
ing upon  mineral  land,  within  ten  miles  of  the  center  line  of  the 
road  or  branches,  was  granted  to  said  railroad  company,  except 
so  much  as  is  necessary  to  support  the  improvements  of  mine- 
owners  upon  the  given  tracts.  When  patent  issues  for  such 
mineral  land,  it  is  necessary  to  insert  therein  a  clause  excepting 
from  the  operation  of  the  patent  all  timber  being  or  growing 
upon  odd-numbered  sections  within  the  limits  hereinbefore  re- 
ferred to,  except  such  "  as  is  necessary  to  support  his  improve- 
ments as  a  miner."  1 

§  266.   Claim   not  within  any  mining  district. — In  the 

event  of  a  mining  claim  being  situated  outside  of  any  regularly- 
constituted  mining  district,  affidavit  of  the  fact  must  be  made, 
and  secondary  evidence  of  possessory  title  will  be  received, 
which  may  consist  of  the  affidavit  of  the  claimant,  supported  by 
those  of  any  other  parties  cognizant  of  the  facts  relative  to  the 
location,  occupation,  and  possession  of  such  claim,  and  any 
deeds,  certificates  of  location  or  purchase,  or  other  evidence, 
which  may  be  in  the  claimant's  possession,  and  tend  to  establish 
his  claim.2 

Lessee  v.  Hagan,  3  How.  U.  S.  212;  Goodtitle  v.  Kibbe,  9  Ibid.  471;  Doe  v.  Beebe, 
13  Ibid.  25;  Railroad  Company  v.  Schurmir,  7  Wall.  U.  S.  272;  Decision  of  Com- 
missioner, Nov.  5th,  1874,  1  Copp's  Land-owner,  155. 

i  Act  of  July,  18G2,  12  U.  S.  Stats.  489,  Sec.  3;  Act  of  July  2d,  1864,  13  U.  S. 
Stats.  356;  Decision  of  Commissioner,  Nov.  12th,  1874;  C.  P.  R.  R.  Co.  v.  Mam- 
moth Blue  Gravel  Co.,  1  Copp's  Land-owner,  134  ;  affirmed  by  Secretary  S.  C. 
2  Id.  104. 

2  Decision  of  Commissioner,  Nov.  12th,  1872,  Copp's  U.  S.  Mining  Decisions,  147. 


376  MISCELLANEOUS    PROVISIONS.  §§  267-8 

§  267.  Removal  of  machinery. — Where  a  party  abandons 
a  mining  claim,  he  has  the  right  to  remove  from  the  claim  any 
machinery  or  buildings  which  he  may  have  placed  thereon,  or 
any  ore  that  he  may  have  extracted  from  such  mine.  A  party 
relocating  an  abandoned  mine  may,  in  prosecuting  work  thereon, 
either  sink  new  shafts  and  run  new  tunnels,  or  continue  the 
work  upon  such  shafts  or  tunnels  as  may  have  been  constructed 
by  parties  who  had  abandoned  the  same.1 

§  2S3.  Criminal  offenses  concerning  mineral  lands,  pen- 
alties, etc. — Every  person  avIio  does  himself,  or  causes  or 
procures,  or  willingly  aids  and  assists,  to  be  falsely  made, 
altered,  forged,  or  counterfeited,  any  petition,  certificate,  order, 
report,  decree,  concession,  denouncement,  deed,  patent,  confirm- 
ation, diseuo,  map,  expediente,  or  part  of  an  expediente,  or  any 
title  paper,  or  evidence  of  right,  title,  or  claim  to  lands,  mines, 
or  minerals,  in  California,  or  any  instrument  of  writing  what- 
ever in  relation  to  lands  or  mines  or  minerals  in  the  State  of 
California,  for  the  purpose  of  setting  up  or  establishing  against 
the  United  States  any  claim,  right,  or  title  to  lands,  mines,  or 
minerals,  within  the  State  of  California,  or  for  the  purpose  of 
enabling  any  person  to  set  up  or  establish  any  such  claim ;  and 
every  person  who,  for  such  purpose,  utters  or  publishes  as  true 
and  genuine  any  such,  false,  forged,  altered,  or  counterfeited 
paper,  (enumerated  as  above)  shall  be  punishable  by  imprison- 
ment at  hard  labor  not  less  than  three  years  and  not  more  than 
ten  years,  and  by  fine  of  not  more  than  $10,000.2 

By  Rev.  Stats.  2472,  Sec.  2,  Act  of  May  18th,  1858, 11  U.  S. 
Stats.  291,  similar  punishments  and  penalties  are  applied  to 
Mexican  grants  of  lands  and  mines. 

And  by  Rev.  Stats.  Sec.  2473,  Sec.  3,  Act  May  18th,  1858, 
11  U.  S.  Stats.  291,  similar  provisions  are  made  applicable  to 
suits  prosecuted  on  such  false  and  forged  papers  as  those  men- 
tioned  in  the  two  preceding  sections.3 

Perjury. — If  parties  are  guilty  of  perjury  in  the  matter  of 
making   proof,  and  have   falsely  made    oath  in   regard  to  the 

i  Decision  of  Commissioner,  Jnno  2d,  1870,  3  Copp's  Land-owner,  50. 
-  Rev.  Sluts.  2471,  Sec.  I,   A. •),  May  1st li,  1858,  11  U.  S.  Stats.  290. 
a  Bee.  3,  Art  May  isih,  L868,  11  U.  S.  Stats.  291. 


§  269  MISCELLANEOUS   PROVISIONS.  377 

character  of  the  land  embraced  by.  their  entries,  their  cases 
should  be  brought  to  the  attention  of  the  grand  jury.  Any 
assistance  which  can  be  rendered  by  the  Land  Office  is  usually 
tendered,  and  copies  of  papers  transmitted  when  needed.1 

§  2S9.  Various  provisions. —  Custody  of  Letters. — All 
official  letters  sent  to  the  Register  and  Receiver,  as  well  as  the 
official  records  of  letters  sent  by  them,  are  the  property  of  the 
United  States  ;  as  such  they  should  be  retained  in  their  offices. 
Ex-Registers  have  no  right  to  take  away  or  retain  any  official 
records  or  documents.2 

Removal  of  Papers. — Applicants  for  patents  have  the  right 
to  examine  any  and  all  papers  that  are  filed  with  the  Register 
and  Receiver  in  the  nature  of  protests  and  adverse  claims  to 
their  applications  for  patents,  but  the  local  land  officers  are  not 
permitted  to  allow  papers  which  have  been  filed  to  be  removed 
from  the  office.3 

Warrants  and  scrip  cannot  be  received  in  payment  of  min- 
eral land,  nor  located  thereon.4 

1  Decision  of  Commissioner,  Dec.  11th,  1873,  Copp's  U.  S.  Mining  Decis.  339. 

2 Ibid.  April  14th,  1873,  Ibid.  188. 

s  Bbid.  April  14th,  1873,  Ibid.  181. 

4  Decision  of  Commissioner,  Jan.  30th,  1873,  Dec.  1st,  1875,  Feb.  23rd,  1872, 
Aug.  25th,  187G,  Copp's  U.  S.  Mining  Decisions,  157,  2  Copp's  Land-owner,  130, 
178,  3  Ibid.  83. 


THE  REVISED  STATUTES 


UNITED  STATES 


KELATING   TO 


MINEBAL   LANDS 


§  2318.  Mineral  lands  reserved. 

§  2319.  Mineral  lands  open  to  purchase  by  citizens. 

§  2320.  Length  of  mining  claims  upon  veins  or  lodes. 

§  2321.  Proof  of  citizenship. 

§  2322.  Locators'  rights  of  possession  and  enjoyment. 

§  2323.  Owners  of  tunnels,  rights  of. 

§  2324.  Regulations  made  by  miners — Expenditures  and  improvements. 

§  2325.  Patents  for  mineral  lands,  how  obtained. 

§  2326.  Adverse  claim,  proceedings  on. 

§  2327.  Description  of  vein  claims  on  surveyed  and  unsurveyed  lands. 

§  2328.  Pending  applications — Existing  rights. 

§  2329.  Conformity  of  placer  claims  to  surveys,  limit  of. 

§  2330.  Subdivision  of  ten-acre  tracts,  maximum  of  placer  locations. 

§  2331.  Conformity  of  placer  claims  to  surveys,  limitation  of  claims. 

§  2332.  What  evidence  of  possession,  etc.,  to  establish  a  right  to  a  patent. 

§  2333.  Proceedings  for  patent  for  placer  claim,  etc. 

§  2334.  Surveyor-General  to  appoint  surveyors  of  mining  claims,  etc. 

§  2335.  Verification  of  affidavits,  etc. 

§  2336.  Where  veins  intersect,  etc. 

§  2337.  Patents  for  non-mineral  lands,  etc. 

§  2338.  What  conditions  of  sale  may  be  made  by  local  legislature. 

§  2339.  Vested  rights  to  use  of  water  for  mining,  etc.,  right  of  way  for  canals. 

§  2340.  Patents,  pre-ernptions,  and  homesteads  subject  to  vested  water  rights. 

§  2341.  Lands  in  which  no  valuable  mines  are  discovered,  open  to  homesteads. 

§  2342.  Mineral  lauds,  how  set  apart  as  agricultural  lands. 

§  2343.  Additional  districts  and  officers,  power  of  the  President  to  provide. 

§  2344.  Provisions  of  this  chapter  not  to  affect  certain  rights. 


380  MINERAL    STATUTES.  §§  2318-20 

§  2345.  Mineral  lands  in  certain  States  excepted. 

§  2346.  Grants  of  land  to  States  or  corporations  not  to  include  mineral  lands. 

§  2347.  Entry  of  coal  lands. 

§  2348.  Pre-emption  of  coal  lands. 

§  2349.  Pre-emption  claims  of  coal  lands  to  be  presented  within  sixty  days. 

§  2350.  Only  one  entry  allowed. 

§  2351.  Conflicting  claims. 

§  2352.  Eights  reserved. 

§  2318.  Mineral  lands  reserved. — In  all  cases  lands  val- 
uable for  minerals  shall  be  reserved  from  sale,  except  as  other- 
wise expressly  directed  by  law. 

§  2319.  Mineral  lands  open  to  purchase  by  citizens. — 

All  valuable  mineral  deposits  in  lands  belonging  to  the  United 
States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to 
be  free  and  open  to  exploration  and  purchase,  and  the  lands  in 
which  they  are  found  to  occupation  and  purchase  by  citizens  of 
the  United  States,  and  those  who  have  declared  their  intention 
to  become  such,  under  regulations  prescribed  by  law,  and  ac- 
cording to  the  local  customs  or  rules  of  miners  in  the  several  min- 
ing districts,  so  far  as  the  same  are  applicable  and  not  incon- 
sistent with  the  laws  of  the  United  States. 

Sec.  1  of  the  Act  of  1872.  17  IT.  S.  Stat.  91,  was  identical  with  the  above. 

Sec.  1  of  the  Statute  of  July  26th,  1866,  read  as  follows :  Sec.  1.  That  the 
mineral  lands  of  the  public  domain,  both  surveyed  and  unsurveyed,  are  hereby 
declared  to  be  fret:  and  i  >pen  to  exploration  and  occupation  by  all  citizens  of  the 
United  States,  and  those  who  have  declared  their  intention  to  become  citizens, 
subject  tci  such  regulations  as  maybe  preecribed  bylaw,  and  subject  also  to  the 
local  customs  or  rules  of  miners  in  the  several  mining  districts,  so  far  as  the 
same  may  not  be  in  conflict  with  the  laws  of  the  United  States.  [14  U.  S.  Stat. 
251.] 

See  Sec.  2329. 

§  2320.  Length  of  mining  claims  upon  veins  or  lodes. — 

Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock  in 
place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other 
valuable  deposits  heretofore,  located,  shall  be  governed  as  to 
length  along  the  vein  or  lode  by  the  customs,  regulations  and 
laws  in  force  al  the  date  of  their  location.  A  mining  claim  lo- 
cated  after  the  tenth  day  of  May,  eighteen  hundred  and  seventy- 
two,  whether  located  by  one  or  more  persons,  may  equal,  but  shall 
not  exceed,  one  thousand  five  hundred  feet  in  length  along  the 
vi  in  or  lode  :   hut  no  Location  of  a  mining  claim  shall  be  made 


§§  2321-2  MINERAL    STATUTES.  381 

until  the  discovery  of  the  vein  or  lode  within  the  limits  of  the 
claim  located.  No  claim  shall  extend  more  than  three  hundred 
feet  on  each  side  of  the  middle  of  the  vein  at  the  surface,  nor 
shall  any  claim  be  limited  by  any  mining  regulation  to  less  than 
twenty-five  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  except  where  adverse  rights  existing  on  the  tenth  day  of 
May,  eighteen  hundred  and  seventy-two,  render  such  limitation 
necessary.  The  end-lines  of  each  claim  shall  be  parallel  to  each 
other. 

Sec.  2  of  the  Act  of  1872,  17  U.  S.  Stat.  91,  was  the  same  as  the  above. 

Sec.  4  of  the  Statute  of  July  26th,  1S66,  read  as  follows:  Sec.  4.  That  when 
such  location  and  entry  of  a  mine  shall  be  upon  unsurveyed  lands,  it  shall  and 
may  be  lawful,  after  the  extension  thereto  of  the  public  surveys,  to  adjust  the 
surveys  to  the  limits  of  the  premises,  according  to  the  location  and  possession 
and  plat  aforesaid ;  and  the  surveyor-general  may,  in  extending  the  surveys, 
vary  the  same  from  a  rectangular  form  to  suit  the  circumstances  of  the  coun- 
try, and  the  local  rules,  laws,  and  customs  of  miners :  Provided,  That  no  loca- 
tion hereafter  made  shall  exceed  two  hundred  feet  in  length  along  the  vein  for 
each  locator,  with  an  additional  claim  for  discovery  to  the  discoverer  of  the  lode, 
with  the  right  to  follow  such  vein  to  any  depth  with  all  its  dips,  variations,  and 
angles,  together  with  a  reasonable  quantity  of  surface  for  the  convenient  work- 
ing of  the  same,  as  fixed  by  local  rules:  And  provided  further,  That  no  person 
may  make  more  than  one  location  on  the  same  lode,  and  not  more  than  three 
thousand  feet  shall  be  taken  in  any  one  claim  by  any  association  of  persons. 
[14  U.  S.  Stat.  252.] 

See  Sees.  2323,  2337. 

§  2321.  Proof  of  citizenship. — Proof  of  citizenship,  under 
this  chapter,  may  consist,  in  the  case  of  an  individual,  of  his 
own  affidavit  thereof ;  in  the  case  of  an  association  of  persons 
unincorporated,  of  the  affidavit  of  their  authorized  agent,  made 
on  his  own  knowledge,  or  upon  information  and  belief ;  and  in 
the  case  of  a  corporation  organized  under  the  laws  of  the  United 
States,  or  of  any  State  or  Territory  thereof,  by  the  filing  of  a 
certified  copy  of  their  charter  or  certificate  of  incorporation. 

The  last  clause  of  Sec.  7  of  the  Act  of  1872,  17  U.  S.  Stat.  94,  was  the  sam.'  as 
the  above,  with  the  following  addition:  "  and  nothing  herein  contained  shall  be 
construed  to  prevent  the  alienation  of  the  title  conveyed  by  a  patent  for  a  min- 
ing claim  to  any  person  whatever,"  which  language  is  now  incorporated  in  the 
last  clause  of  Sec.  2326. 

See  Sec.  2335. 

§  2322.   Locators'  rights  of  possession  and  enjoyment. 

— The    locators   of    all    mining   locations    heretofore    made,  or 
which  shall   hereafter  be  made,  on  any  mineral  vein,  lode,  or 


382  MINERAL  STATUTES.  §  2323 

ledge,  situated  on  the  public  domain,  their  heirs  and  assigns, 
where  no  adverse  claim  exists  on  the  tenth  day  of  May,  eight- 
een hundred  and  seventy-two,  so  long  as  they  comply  with  the 
laws  of  the  United  States,  and  with  State,  territorial,  and  local 
regulations  not  in  conflict  with  the  laws  of  the  United  States 
governing  their  possessory  title,  shall  have  the  exclusive  right 
of  possession  and  enjoyment  of  all  the  surface  included  within 
the  lines  of  their  locations,  and  of  all  veins,  lodes,  and  ledges 
throughout  their  entire  depth,  the  top  or  apex  of  which  lies 
inside  of  such  surface-lines  extended  downward  vertically,  al- 
although  such  veins,  lodes,  or  ledges  may  so  far  depart  from  a 
perpendicular  in  their  course  downward  as  to  extend  outside  the 
vertical  side-lines  of  such  surface  locations.  But  their  right  of 
possession  to  such  outside  parts  of  such  veins  or  ledges  shall 
be  confined  to  such  portions  thereof  as  lie  between  vertical 
planes  drawn  downward  as  above  described,  through  the  end- 
lines  of  their  locations,  so  continued  in  their  own  direction  that 
such  planes  will  intersect  such  exterior  parts  of  such  veins  or 
ledges.  And  nothing  in  this  section  shall  authorize  the  locator 
or  possessor  of  a  vein  or  lode  which  extends  in  its  downward 
course  beyond  the  vertical  lines  of  his  claim  to  enter  upon  the 
surface  of  a  claim  owned  or  possessed  by  another. 

Sec.  3  of  the  Act  of  1872,  17  U.  S.  Stat.  91,  was  the  same  as  the  above. 

See  Sees.  2320,  2324. 

§  2323.  Owners  of  tunnels,  rights  of. — Where  a  tunnel  is 
run  for  the  development  of  a  vein  or  lode,  or  for  the  discovery 
of  mines,  the  owners  of  such  tunnel  shall  have  the  right  of 
possession  of  all  veins  or  lodes  within  three  thousand  feet  from 
the  face  of  such  tunnel  on  the  line  thereof,  not  previously 
known  to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as 
ii'  discovered  from  the  surface ;  and  locations  on  the  line  of  such 
tunnel  of  veins  or  Lodes  not  appearing  on  the  surface,  made  by 
oilier  parties  after  the  commencement  of  the  tunnel,  and  while 
i lie  same  is  being  prosecuted  with  reasonable  diligence,  shall  be 
invalid  :  bul  failure  to  prosecute  the  work  on  the  tunnel  for  six 
month-  shall  he  considered  us  an  abandonment  of  the  right  to 
all   undiscovered  veins  on  the  line  of  such  tunnel. 

Bee.  i  "i"  ti"-  A.ct  "i  1872,  17  U.  8.  Stat.  92,  was  the  Bame  as  the  above. 
,,    2320 


§  2324  MINERAL  STATUTES.  383 

§  2324.   Miners'    regulations — Expenditures    and    im- 
provements.— The  miners  of  each  mining  district  may  make 
regulations  not  in  conflict  with  the  laws  of  the  United  States, 
or  with  the  laws  of  the  State  or  territory  in  which  the  district 
is  situated,  governing  the  location,  manner  of  recording,  amount 
of  work  necessary  to  hold  possession  of  a  mining  claim,  subject 
to  the  following  requirements  :  The  location  must  be  distinctly 
marked  on  the   ground  so  that  its  boundaries  can  be  readily 
traced.     All  records  of  mining  claims  hereafter  made  shall  con- 
tain the  name  or  names  of  the  locators,  the  date  of  the  location, 
and  such  a  description  of  the  claim  or  claims  located  by  refer- 
ence to  some  natural  object   or  permanent  monument  as  will 
identify  the  claim.     On  each  claim  located  after  the  tenth  day  of 
May,  eighteen  hundred  and  seventy-two,  and  until  a  patent  has 
been  issued  therefor,  not  less  than  one  hundred  dollars'  worth 
of  labor  shall  be  performed  or  improvements  made  during  each 
year.     On  all  claims  located  prior  to  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  ten  dollars'  worth  of  labor 
shall  be  performed  or  improvements  made  by  the  tenth  day  of 
June,  eighteen  hundred  and  seventy-four,  and  each  year  there- 
after, for  each  one  hundred  feet  in  length  along  the  vein,  until 
a  patent  has  been  issued  therefor ;  but  where  such  claims  are 
held  in  common,  such  expenditure   may  be  made  upon  any  one 
claim  ;  and  upon  a  failure  to  comply  with  these  conditions,  the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to 
relocation  in  the  same  manner  as  if  no  location  of  the  same  had 
ever  been  made,  provided  that  the  original  locators,  their  heirs, 
assigns,  or  legal  representatives,  have  not  resumed  work  upon 
the  claim  after  failure  and  before  such  location.    Upon  the  fail- 
ure  of  any  one  of  several  co-owners   to  contribute  his  propor- 
tion of  the  expenditures  required  hereby,  the  co-owners   who 
have  performed  the  labor  or  made  the  improvements,  may,  at 
the  expiration  of  the  year,  give  such  delinquent  co-owner  per- 
sonal notice  in  writing,  or  notice  by  publication  in  the  newspa- 
per published  nearest  the  claim,  for  at  least   once   a  week  for 
ninety  days,  and  if,  at  the  expiration  of  ninety  days  after  such 
notice  in  writing  or  by  publication,  such  delinquent  should  fail 
or   refuse  to   contribute  his   proportion  of  the   expenditure  re- 
quired by  this  section,  his  interest  in  the  claim  shall  become  the 


384  MINERAL  STATUTES.  §  2325 

property  of  his  co-owners  who  have  made  the  required  expend- 
itures. 

"  That  section  two  thousand  three  hundred  and  twenty-four  of 
the  revised  statutes  be,  and  the  same  is  hereby,  amended,  so  that 
where  a  person  or  company  has  or  may  run  a  tunnel  for  the 
purposes  of  developing  a  lode  or  lodes,  owned  by  said  person 
or  company,  the  money  so  expended  in  said  tunnel  shall  be 
taken  and  considered  as  expended  on  said  lode  or  lodes,  whether 
located  prior  to  or  since  the  passage  of  said  act ;  and  such  per- 
son or  company  shall  not  be  required  to  perform  work  on  the 
surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as  re- 
quired by  said  act."     [Amendment  enacted  Feb.  11th,  1875.] 

Sec.  5  of  the  Act  of  May  10th,  1872,  U.  S.  Stat.  92,  substituted  the  words,  "each 
year  for  each  hundred  feet,"  instead  of  the  words,  "  by  the  tenth  day  of  June, 
eighteen  hundred  and  seventy-four,  and  each  year  thereafter,"  in  the  clause  re- 
lating to  expenditures;  otherwise  the  section  was  the  same. 

An  Act  of  Congress,  approved  March  1st,  1873,  amended  Sec.  5  of  the  Act 
of  1872,  (17  IT.  S.  Stat.  92)  so  as  to  read  as  follows:  "That  the  time  for  the 
first  annual  expenditure  on  claims  located  prior  to  the  passage  of  said  act  shall 
be  extended  to  the  tenth  day  of  June,  eighteen  hundred  and  seventy-four." 

An  Act  of  Congress,  approved  June  6th,  1874,  further  extended  said  time  for 
first  annual  expenditure  to  the  1st  day  of  January,  1875. 

See  Sees.  2331,  2332. 

§  2325.  Patents  for  mineral  lands,  how  obtained. — A 

patent  for  any  land  claimed  and  located  for  valuable  deposits 
may  be  obtained  in  the  following  manner :  Any  person,  asso- 
ciation, or  corporation  authorized  to  locate  a  claim  under  this 
chapter,  having  claimed  and  located  a  piece  of  land  for  such 
purposes,  who  has,  or  have,  complied  with  the  terms  of  this 
chapter,  may  file  in  the  proper  land  office  an  application  for  a 
patent,  under  oath,  showing  such  compliance,  together  with  a 
plat  and  field-notes  of  the  claim  or  claims  in  common,  made  by 
or  under  tin:  direction  of  the  United  States  Surveyor-General, 
showing  accurately  the  boundaries  of  the  claim  or  claims, 
which  shall  !><•  distinctly  marked  by  monuments  on  the  ground, 
and  .-hall  posi  a  copy  of  such  plat,  together  with  a  notice  of 
such  application  for  a  patent,  in  a  conspicuous  place  on  the  land 
embraced  in  such  plat  previous  to  the  filing  of  the  applic  ation 
for  a  patent,  and  shall  lile  an  affidavit  of  at  least  two  persons 
that  such  DOtice  has  heen  duly  posted,  and  shall  file  a  copy  of  the 
notice  in  such  land  office,  and    shall    thereupon  be  entitled  to   a 


§  2325  MINERAL    STATUTES.  385 

patent  for  the  land,  in  the  manner  following :  The  register  of 
the  land  office,  upon  the  filing  of  such  application,  plat,  field- 
notes,  notices,  and  affidavits,  shall  publish  a  notice  that  such 
application  has  been  made,  for  the  period  of  sixty  days,  in  a 
newspaper  to  be  by  him  designated  as  published  nearest  to  such 
claim ;  and  he  shall  also  post  such  notice  in  his  office  for  the 
same  period.  The  claimant  at  the  time  of  filing  this  applica- 
tion, or  at  any  time  thereafter,  within  the  sixty  days  of  publica- 
tion, shall  file  with  the  register  a  certificate  of  the  United  States 
Surveyor-General  that  five  hundred  dollars'  worth  of  labor  has 
been  expended  or  improvements  made  upon  the  claim  by  him- 
self or  grantors  ;  that  the  plat  is  correct,  with  such  further  de- 
scription by  such  reference  to  natural  objects  or  permanent 
monuments  as  shall  identify  the  claim,  and  furnish  an  accurate 
description,  to  be  incorporated  in  the  patent.  At  the  expiration 
of  the  sixty  days  of  publication  the  claimant  shall  file  his  affi- 
davit, showing  that  the  plat  and  notice  have  been  posted  in  a 
conspicuous  place  on  the  claim  during  such  period  of  publica- 
tion. If  no  adverse  claim  shall  have  been  filed  with  the  regis- 
ter and  the  receiver  of  the  proper  land  office  at  the  expiration  of 
the  sixty  days  of  publication,  it  shall  be  assumed  that  the  appli- 
cant is  entitled  to  a  patent,  upon  the  payment  to  the  proper  offi- 
cer of  five  dollars  per  acre,  and  that  no  adverse  claim  exists ; 
and  thereafter  no  objection  from  third  parties  to  the  issuance  of 
a  patent  shall  be  heard,  except  it  be  shown  that  the  applicant 
has  failed  to  comply  with  the  terms  of  this  chapter. 

Sec.  G  of  the  Act  of  1872,  17  U.  S.  Stat.  92,  was  the  same  as  the  above. 

Sec.  2  of  the  Mining  Statute  of  July  26th,  18GG,  read  as  follows:  Sec.  2.  That 
whenever  any  person,  or  association  of  persons,  claim  a  vein  or  lode  of  quartz 
or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  or  copper,  having  pre- 
viously occupied  and  improved  the  same  according  to  the  local  custom  or  rules 
of  miners  in  the  district  where  the  same  is  situated,  and  having  expended  in 
actual  labor  and  improvements  thereon  an  amount  of  not  less  than  one  thous- 
and dollars,  and  in  regard  to  whose  possession  there  is  no  controversy  or  oppos- 
ing claim,  it  shall  and  may  be  lawful  for  said  claimant,  or  association  of  claims 
ants,  to  file  in  the  local  land  office  a  diagram  of  the  same,  so  extended  laterally 
or  otherwise  as  to  conform  to  the  local  laws,  customs,  and  rules  of  miners,  and 
to  enter  such  tract  and  receive  a  patent  therefor,  granting  such  mine,  together 
with  the  right  to  follow  such  vein  or  lode  with  its  dips,  angles,  and  variations  to 
any  depth,  although  it  may  enter  the  laud  adjoining,  which  land  adjoining  shall 
be  sold  subject  to  this  condition.     [14  U.  S.  Stat.  251.] 

Sec.  3  of  the  Mining  Statute  of  July  26th,  186G,  read  as  follows:  Sec.  3.  That 
upon  the  filing  of  the  diagram  as  provided  in  the  second  section  of  this  act,  and 
posting  the  same  in  a  conspicuous  place  on  the  claim,  together  with  a  notice  of 

W.  C— 25. 


386  MINERAL  STATUTES.  §  2326 

intention  to  apply  for  a  patent,  the  register  of  the  land-office  shall  publish  a 
notice  of  the  same  in  a  newspaper  published  nearest  to  the  location  of  said 
claim,  and  shall  also  post  such  notice  in  his  office  for  the  period  of  ninety  days ; 
and  after  the  expiration  of  said  period,  if  no  adverse  claim  shall  have  been  filed, 
it  shall  be  the  duty  of  the  surveyor-general,  upon  application  of  the  party,  to 
survey  the  premises  and  make  a  plat  thereof,  indorsed  with  his  approval,  desig- 
nating the  number  and  description  of  the  location,  the  value  of  the  labor  and 
improvements,  and  the  character  of  the  vein  exposed;  and  upon  the  payment 
to  the  proper  officer  of  five  dollars  per  acre,  together  with  the  cost  of  such  sur- 
vey, plat,  and  notice,  and  giving  satisfactory  evidence  that  said  diagram  and 
notice  have  been  posted  on  the  claim  during  said  period  of  ninety  days,  the  reg- 
ister of  the  land  office  shall  transmit  to  the  General  Land  Office  said  plat,  sur- 
vey, and  description,  and  a  patent  shall  issue  for  the  same  thereupon.  But  said 
plat,  survey,  or  description  shall  in  no  case  cover  more  than  one  vein  or  lode, 
and  no  patent  shall  issue  for  more  than  one  vein  or  lode,  which  shall  be  ex- 
pressed in  the  patent  issued.  [14  U.  S.  Stat.  252.] 
See  Sees.  2325,  2327,  2328,  2333. 

§  2326.  Adverse  claim,  proceedings  on. — Where  an  ad- 
verse claim  is  filed  during  the  period  of  publication,  it  shall  be 
upon  oath  of  the  person  or  persons  making  the  same,  and  shall 
show  the  nature,  boundaries,  and  extent  of  such  adverse  claim, 
and  all  proceedings,  except  the  publication  of  notice  and  mak- 
ing and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the 
controversy  shall  have  been  settled  or  decided  by  a  Court  of 
competent  jurisdiction,  or  the  adverse  claim  waived.  It  shall 
be  the  duty  of  the  adverse  claimant,  within  thirty  days  after  fil- 
ing his  claim,  to  commence  proceedings  in  a  Court  of  competent 
jurisdiction,  to  determine  the  question  of  the  right  of  posses- 
sion, and  prosecute  the  same  with  reasonable  diligence  to  final 
judgment ;  and  a  failure  so  to  do  shall  be  a  waiver  of  his  ad- 
verse claim.  After  such  judgment  shall  have  been  rendered, 
the  party  entitled  to  the  possession  of  the  claim,  or  any  portion 
thereof,  may,  without  giving  further  notice,  file  a  certified  copy 
of  the  judgment-roll  with  the  register  of  the  land  office,  together 
with  the  certificate  of  the  Surveyor-General  that  the  requisite 
amount  of  labor  has  been  expended  or  improvements  made 
thereon,  and  the  description  required  in  other  cases,  and  shall 
pay  to  the  receiver  five  dollars  per  acre  for  his  claim,  together 
with  the  proper  fees,  whereupon  the  whole  proceedings  and  the 
judgment-roll  shall  be  certified  by  the  register  to  the  Commis- 
sioner of  the  General  Land  Office,  and  a  patent  shall  issue 
thereon  for  the  claim,  or  such  portion  thereof  as  the  applicant 
shall  appear,  from  the  decision  of  the  Court,  to  rightly  possess. 


§§  2327-8  MINERAL    STATUTES.  387 

If  it  appears,  from  the  decision  of  the  Court,  that  several  parties 
are  entitled  to  separate  and  different  portions  of  the  claim,  each 
party  may  pay  for  his  portion  of  the  claim,  with  the  proper  fees, 
and  file  the  certificate  and  description  by  the  Surveyor-General, 
whereupon  the  register  shall  certify  the  proceedings  and  judg- 
ment-roll to  the  Commissioner  of  the  General  Land  Office,  as  in 
the  preceding  case,  and  patents  shall  issue  to  the  several  parties 
according  to  their  respective  rights.  Nothing  herein  contained 
shall  be  construed  to  prevent  the  alienation  of  the  title  conveyed 
by  a  patent  for  a  mining  claim  to  any  person  whatever. 

Sec.  7  of  the  Act  of  1872,  17  IT.  S.  Stat.  93,  was  the  same  as  the  above,  with  the 
exception  of  the  omission  of  the  clause  relating  to  proofs  of  citizenship,  which 
was  identical  with  Sec.  2321,  Ante. 

Sec.  6  of  the  Statute  of  July  26th,  18GG,  read  as  follows :  Sec.  6.  That  whenever 
any  adverse  claimants  to  any  mine,  located  and  claimed  as  aforesaid,  shall  ap- 
pear before  the  approval  of  the  survey,  as  provided  in  the  third  section  of  this 
act,  all  proceedings  shall  be  stayed  until  a  final  settlement  and  adjudication,  in 
the  Courts  of  competent  jurisdiction,  of  the  rights  of  possession  to  such  claim, 
when  a  patent  may  issue  as  in  other  cases.     [14  U.  S.  Stat.  252.] 

See  Sec.  2325. 

§  2327.  Description  of  vein-claims  on  surveyed  and 
unsurveyed  lands. — The  description  of  vein  or  lode  claims, 
upon  surveyed  lands,  shall  designate  the  location  of  the  claim 
with  reference  to  the  lines  of  the  public  surveys,  but  need  not 
conform  therewith  ;  but  where  a  patent  shall  be  issued  for 
claims  upon  unsurveyed  lands,  the  Surveyor-General,  in  extend- 
ing the  surveys,  shall  adjust  the  same  to  the  boundaries  of  such 
patented  claim,  according  to  the  plat  or  description  thereof,  but 
so  as  in  no  case  to  interfere  with  or  change  the  location  of  any 
such  patented  claim. 

Sec.  8  of  the  Act  of  1872,  17  U.  S.  Stat.  94,  was  the  same  as  the  above. 

See  Sec.  2325. 

§  2328.  Pending  applications — Existing  rights. — Appli- 
cations for  patents  for  mining  claims  under  former  laws  now 
pending  may  be  prosecuted  to  a  final  decision  in  the  General 
Land  Office  ;  but  in  such  cases  where  adverse  rights  are  not  af- 
fected thereby,  patents  may  issue  in  pursuance  of  the  provisions 
of  this  chapter  ;  and  all  patents  for  mining  claims  upon  veins  or 
lodes  heretofore  issued  shall  convey  all  the  rights  and  privileges 
conferred  by  this  chapter,  where  no  adverse  rights  existed  on  the 
tenth  day  of  May,  eighteen  hundred  and  seventy-two. 


388  MINERAL    STATUTES.  §§  2329-30 

Sec.  9  of  the  Act  of  1872, 17  U.  S.  Stat.  91,  read :  Sec.  9.  That  sections  one,  two, 
three,  four  and  sis  of  an  Act  entitled  "An  Act  granting  the  right  of  way  to 
ditch  and  canal-owners  over  the  public  lands,  and  for  other  purposes,"  approved 
July  twenty-sixth,  eighteen  hundred  and  sixty-sis,  are  hereby  repealed,  but 
such  repeal  shall  not  affect  existing  rights.  Applications  for  patents  for  mining 
claims  now  pending  may  be  prosecuted  to  a  final  decision  in  the  General  Land 
Office ;  but  in  such  cases  where  adverse  rights  are  not  affected  thereby,  patents 
may  issue  in  pursuance  of  the  provisions  of  this  act;  and  all  patents  for  mining 
claims  heretofore  issued  under  the  Act  of  July  twenty-sixth,  eighteen  hundred 
and  sixty-six,  shall  convey  all  the  rights  and  privileges  conferred  by  this  act 
where  no  adverse  rights  exist  at  the  time  of  the  passage  of  this  act.  [For 
Sees.  1,  2,  3.  4,  and  6  of  the  Act  of  186G,  repealed  by  Sec.  9  of  the  Act  of  1872, 
see  notes  to  Sees.  2319,  2320,  2325,  and  232G,  Ante.] 

See  Sees.  2325,  232(i 

§  2329.   Conformity  of  placer  claims  to  surveys — Limit 

of. — Claims  usually  called  "  placers,"  including  all  forms  of  de- 
posit, excepting  veins  of  quartz,  or  other  rock  in  place,  shall 
be  subject  to  entry  and  patent,  under  like  circumstances  and 
conditions,  and  upon  similar  proceedings,  as  are  provided  for  vein 
or  lode  claims ;  but  where  the  lands  have  been  previously  sur- 
veyed by  the  United  States,  the  entry  in  its  exterior  limits 
shall  conform  to  the  legal  subdivisions  of  the  public  lands. 

The  first  clause  of  Sec.  12  of  the  Act  of  1870,  16  U.  S.  Stat.  217,  was  substan- 
tially the  same  as  the  above.     [See  note  to  Sec.  2330.] 

See  Sees.  2319,  2331,  2334. 

§  2330.  Subdivision  of  ten-acre  tracts — Limit  of  placer 
locations. — Legal  subdivisions  of  forty  acres  may  be  subdivided 
into  ten-acre  tracts ;  and  two  or  more  persons,  or  associations  of 
persons,  having  contiguous  claims  of  any  size,  although  such 
claims  may  be  less  than  ten  acres  each,  may  make  joint  entry 
thereof ;  but  no  location  of  a  placer  claim,  made  after  the  ninth 
day  of  July,  eighteen  hundred  and  seventy,  shall  exceed  one 
hundred  and  sixty  acres  for  any  one  person  or  association  of 
persons,  which  location  shall  conform  to  the  United  States  sur- 
veys; and  nothing  in  this  section  contained  shall  defeat  or  im- 
pair any  bona  tide  pre-emption  or  homestead  claim  upon  agri- 
cultural lands,  <>r  authorize  the  sale  of  the  improvements  of  any 
bona  ii<l<'  settler  t"  any  purchaser. 

Bee.  12  of  the  A.  t  of  L870,  16  D.  8.  8tat.217,  read  :  Sec.  12.  That  claims  usually 
called  "placers,"  Including  all  forms  of  deposit  excepting  veins  of  quartz,  or 
other  rocs  In  place,  shall  be  Bubject  to  entry  and  patenl  under  this  act,  under 
like  circumstances  and  conditions  and  upon  similar  proceedings  as  are  provided 
for  vein  or  lode  claims:  Provided,  Thai  wrhere  iii<'  lands  have  been  previously 
surveyed  by  i be  i  United  States,  t be  enl ry  in  its  r-xti-rinr  limits  shall  conform  to 


§  2331  MINERAL  STATUTES.  389 

the  legal  subdivisions  of  the  public  lands,  no  further  survey  or  plat  in  such 
case  being  required,  and  the  lands  may  be  paid  for  at  the  rate  of  two  dollars 
and  fifty  cents  per  acre:  Provided  further,  That  legal  subdivisions  of  forty  acres 
may  be  subdivided  into  ten-acre  tracts;  and  that  two  or  more  persons  or  associ- 
ations of  persons,  having  contiguous  claims  of  any  size,  although  such  claims 
may  be  less  than  ten  acres  each,  may  make  a  joint  entry  thereof:  And  provided 
further,  That  no  location  of  a  placer  claim,  hereafter  made,  shall  exceed  one 
hundred  and  sixty  acres  for  any  one  person  or  association  of  persons,  which 
location  shall  conform  to  the  United  States  surveys ;  and  nothing  in  this  section 
contained  shall  defeat  or  impair  any  bona  fide  pre-emption  or  homestead  claim 
upon  agricultural  lands,  or  authorize  the  sale  of  the  improvements  of  any  bona 
fide  settler  to  any  purchaser. 
See  Sec.  2334. 

§  2331.  Survey  of  placer  claims — Limitation  of. — Where 
placer  claims  are  upon  surveyed  lands,  and  conform  to  legal 
subdivisions,  no  further  survey  or  plat  shall  be  required,  and 
all  placer  mining  claims  located  after  the  tenth  day  of  May, 
eighteen  hundred  and  seventy-two,  shall  conform  as  near  as 
practicable  with  the  United  States  system  of  public  land  sur- 
veys, and  the  rectangular  subdivisions  of  such  surveys,  and  no 
such  location  shall,  include  more  than  twenty  acres  for  each  in- 
dividual claimant ;  but  where  placer  claims  cannot  be  conformed 
to  legal  subdivisions,  survey  and  plat  shall  be  made  as  on  un- 
surveyed  lands ;  and  where  by  the  segregation  of  mineral  land 
in  any  legal  subdivision  a  quantity  of  agricultural  land  less 
than  forty  acres  remains,  such  fractional  portion  of  agricultural 
land  may  be  entered  by  any  party  qualified  by  law,  for  home- 
stead or  pre-emption  purposes. 

Sec.  10  of  the  Act  of  1872,  17  U.  S.  Stat.  94,  read:  Sec.  10.  That  the  act  en- 
titled "An  act  to  amend  an  act  granting  the  right  of  way  to  ditch  and  canal-own- 
ers over  the  public  lands,  and  for  other  purposes,"  approved  July  ninth,  eight- 
een hundred  and  seventy,  shall  be  and  remain  in  full  force,  except  as  to  the 
proceedings  to  obtain  a  patent,  which  shall  be  similar  to  the  proceedings  pre- 
scribed by  sections  six  and  seven  of  this  act,  for  obtaining  patents  to  vein  or 
lode  claims;  but  where  said  placer  claims  shall  be  upon  surveyed  lands,  and 
conform  to  legal  subdivisions,  no  further  survey  or  plat  shall  be  required,  and 
all  placer  mining  claims  hereafter  located  shall  conform  as  near  as  practicable 
with  the  United  States  system  of  public  land  surveys,  and  the  rectangular  sub- 
divisions of  such  surveys,  and  no  such  location  shall  include  more  than  twenty 
acres  for  each  individual  claimant,  but  where  placer  claims  cannot  be  conformed 
to  legal  subdivisions,  survey  and  plat  shall  be  made  as  on  unsurveyed  lands : 
Provided,  That  proceedings  now  pending  may  be  prosecuted  to  their  final  de- 
termination under  existing  laws;  but  the  provisions  of  this  act,  when  not  in 
conflict  with  existing  laws,  shall  apply  to  such  cases:  And  provided  also,  That 
where  by  the  segregation  of  mineral  land  in  any  legal  subdivision  a  quantity 
of  agricultural  land  less  than  forty  acres  remains,  said  fractional  portion  of  ag- 
ricultural land  may  be  entered  by  any  party  qualitied  by  law  for  homestead 
or  pre-emption  purposes. 


390  MINERAL    STATUTES.  §§  2332-3 

Sec.  16  of  the  Act  of  1870,  16  U.  S.  Stat  214,  read:  Sec.  16.  That  so  much  of 
the  Act  of  March  third,  eighteen  hundred  and  fifty-three,  entitled  "An  Act  to 
provide  for  the  survey  of  the  public  lands  in  California,  the  granting  of  pre- 
emption rights,  and  for  other  purposes,"  as  provides  that  none  other  than  town- 
ship lines  shall  be  surveyed  where  the  lands  are  mineral,  is  hereby  repealed. 
And  the  public  surveys  are  hereby  extended  over  all  such  lands :  Provided,  That 
all  subdividing  of  surveyed  lands  into  lots  less  than  one  hundred  and  sixty 
acres  may  be  done  by  county  and  local  surveyors  at  the  expense  of  the  claim- 
ants: And  provided  further,  That  nothing  herein  contained  shall  require  the 
survey  of  waste  or  useless  lands. 

See  Sees.  2329,  2334. 

§  2332.  Evidence  of  possession  to  establish  right  to 
patent. — Where  such  person  or  association,  they  and  their 
grantors,  have  held  and  worked  their  claims  for  a  period  equal 
to  the  time  prescribed  by  the  statute  of  limitations  for  mining 
claims  of  the  State  or  Territory  where  the  same  may  be  situ- 
ated, evidence  of  such  possession  and  working  of  the  claims  for 
such  period  shall  be  sufficient  to  establish  a  right  to  a  patent 
thereto  under  this  chapter,  in  the  absence  of  any  adverse  claim ; 
but  nothing  in  this  chapter  shall  be  deemed  to  impair  any  lien 
which  may  have  attached  in  any  way  whatever  to  any  mining 
claim  or  property  thereto  attached  prior   to  the  issuance   of  a 

patent. 

Sec.  13  of  the  Act  of  1870,  16  U.  S.  Stats.  217,  read:  Sec.  13.  That  where  said 
person  or  association,  they  and  their  grantors,  shall  have  held  and  worked  their 
said  claims  for  a  period  equal  to  the  time  prescribed  by  the  statute  of  limita- 
tions for  mining  claims  of  the  State  or  Territory  where  the  same  may  be  situated, 
evidence  of  such  possession  and  working  of  the  claims  for  such  period  shall  be 
Bufficienl  to  establish  aright  to  a  patent  thereto  under  this  act,  in  the  absence  of 
any  adverse  claim:  Provided,  hoivever,  That  nothing  in  this  act  shall  be  deemed 
to  impair  any  lien  which  may  have  attached  in  any  way  whatever  to  any  min- 
ing claim  or  property  thereto  attached  prior  to  the  issuance  of  a  patent. 

See  Bee.  2324. 

§  2333.  Proceedings  for  patent  for  placer  claim,  etc. — 
Where  the  same  person,  association,  or  corporation  is  in  pos- 
session of  a  placer  claim,  and  also  a  vein  or  lode  included  with- 
in the  boundaries  thereof,  application  shall  be  made  for  a  patent 
for  t  be  placer  claim,  with  the  statement  that  it  includes  such  vein 
or  lode,  and  in   such  case  l  a  patent  shall  issue  for  the  placer 

l Sec.  11  of  the  Act  <>f  1S72,  17  0".  S.  Stat.  !tt,  was  the  same  as  the  above,  with 
the  addition  of  the  words  following,  in  parent hesis,  after  the  words  "and  in 
such  case,"  lifth  line:  (subject  to  the  provisions  of  this  act  and  the  act. entitled 
"An  ad  to  amend  an  art  granting  the  right  of  way  to  ditch  and  canal-owners 
over  tin-  public  lands,  and  for  Other  purposes,"  approved  July  ninth,  eighteen 


§  2334  MINERAL    STATUTES.  391 

claim,  subject  to  the  provisions  of  this  chapter,  including  such 
vein  or  lode,  upon  the  payment  of  five  dollars  per  acre  for  such 
vein  or  lode  claim,  and  twenty-five  feet  of  surface  on  each  side 
thereof.  The  remainder  of  the  placer  claim,  or  any  placer 
claim  not  embracing  any  vein  or  lode  claim,  shall  be  paid  for  at 
the  rate  of  two  dollars  and  fifty  cents  per  acre,  together  with 
all  costs  of  proceedings  ;  and  where  a  vein  or  lode,  such  as  is 
described  in  section  twenty-three  hundred  and  twenty,  is  known 
to  exist  within  the  boundaries  of  a  placer  claim,  an  application 
for  a  patent  for  such  placer  claim  which  does  not  include  an 
application  for  the  vein  or  lode  claim  shall  be  construed  as  a 
conclusive  declaration  that  the  claimant  of  the  placer  claim  has 
no  right  of  possession  of  the  vein  or  lode  claim  ;  but  where  the 
existence  of  a  vein  or  lode  in  a  placer  claim  is  not  known,  a  pat- 
ent for  the  placer  claim  shall  convey  all  valuable  mineral  and 
other  deposits  within  the  boundaries  thereof. 

§  2334.  Surveyor-general  to  appoint  surveyors  of  min- 
ing claims. — The  Surveyor-General  of  the  United  States  may 
appoint  in  each  land  district  containing  mineral  lands  as  many 
competent  surveyors  as  shall  apply  for  appointment  to  survey 
mining  claims.  The  expenses  of  the  survey  of  vein  or  lode 
claims,  and  the  survey  and  subdivision  of  placer  claims  into 
smaller  quantities  than  one  hundred  and  sixty  acres,  together 
with  the  cost  of  publication  of  notices,  shall  be  paid  by  the  ap- 
plicants, and  they  shall  be  at  liberty  to  obtain  the  same  at  the 
most  reasonable  rates,  and  they  shall  also  be  at  liberty  to  employ 
any  United  States  deputy  surveyor  to  make  the  survey.  The 
Commissioner  of  the  General  Land  Office  shall  also  have  power 
to  establish  the  maximum  charges  for  surveys  and  publication 
of  notices  under  this  chapter ;  and,  in  case  of  excessive  charges 
for  publication,  he  may  designate  any  newspaper  published  in  a 
land  district  where  mines  are  situated,  for  the  publication  of 
mining  notices  in  such  district,  and  fix  the  rates  to  be  charged 
by  such  paper  ;  and,  to  the  end  that  the  Commissioner  may  be 
fully  informed   on  the  subject,  each  applicant  shall  file  with  the 

hundred  and  seventy, )  in  lieu  of  the  words,  "subject  to  the  provisions  of  this 
chapter." 
See  Sec.  2325. 


392  MINERAL  STATUTES.  §  2335 

register  a  sworn  statement  of  all  charges  and  fees  paid  by  such 
applicant  for  publication  and  surveys,  together  with  all  fees 
and  money  paid  the  register  and  the  receiver  of  the  land  office, 
which  statement  shall  be  transmitted,  with  the  other  papers  in 
the  case,  to  the  Commissioner  of  the  General  Land  Office. 

Sec.  12  of  the  Act  of  1872,  17  U.  S.  Stat.  95,  was  the  same  as  the  above, 
with  the  following  addition:  "The  fees  of  the  register  and  receiver  shall  be 
five  dollars  each  for  riling  and  acting  upon  each  application  for  patent  or 
adverse  claim  riled,  and  they  shall  be  allowed  the  amount  fixed  by  law  for 
reducing  testimony  to  writing,  when  done  in  the  land  office,  such  fees  and 
allowances  to  be  paid  by  the  respective  parties;  and  no  other  fees  shall  be 
charged  by  them  in  such  cases.  Nothing  in  this  act  shall  be  construed  to  en- 
large or  affect  the  rights  of  either  party  in  regard  to  any  property  ^contro- 
versy at  the  time  of  the  passage  of  this  act  or  of  the  act  entitled  'An  act  granting 
the  right  of  way  to  ditch  and  canal-owners  over  the  public  lands,  and  for  other 
purposes,'  approved  July  twenty-sixth,  eighteen  hundred  and  sixty-six,  nor 
shall  this  act  affect  any  right  acquired  under  said  act;  and  nothing  in  this  act 
shall  be  construed  to  repeal,  impair,  or  in  anyway  affect  the  provisions  of  the  act 
entitled  '  An  act  granting  to  A.  Sutro  the  right  of  way  and  other  privileges  to 
aid  in  the  construction  of  a  draining  and  exploring  tunnel  to  the  Comstock  Lode, 
in  the  State  of  Nevada,'  approved  July  twenty-hfth,  eighteen  hundred  and 
sixty-six." 

For  fees  of  registers  and  receivers,  see  Sec.  2238. 

See  Sees.  2330, 2331,  2406. 

§  2335.  Verification  of  affidavits,  etc. — All  affidavits 
required  to  be  made  under  this  chapter  may  be  verified  before 
any  officer  authorized  to  administer  oaths  within  the  land  district 
where  the  claims  may  be  situated,  and  all  testimony  and  proofs 
may  be  taken  before  any  such  officer,  and,  when  duly  certified 
by  the  officer  taking  the  same,  shall  have  the  same  force  and 
effect  as  if  taken  before  the  register  and  receiver  of  the  Land 
Office.  In  cases  of  contest  as  to  the  mineral  or  agricultural  char- 
acter of  land,  the  testimony  and  proofs  may  be  taken  as  herein 
provided  on  personal  notice  of  at  least  ten  days  to  the  opposing 
party  ;  or  if  such  party  cannot  be  found,  then  by  publication  of 
;it  least  once  a  week  for  thirty  days  in  a  newspaper,  to  be  desig- 
nated by  the  register  of  the  Land  Office  as  published  nearest  to 
the  location  of  such  land;  and  the  register  shall  require  proof 
thai  such  notice  has  been  given. 

Bee.  L3of  the  A.d  of  1872,  17  IT.  S.  Stat.  96,  was  the  same  as  the  above. 

Bee.  11  of  the  A.t  of  1870,  16  U.  B.  Stat.  217,  read:  Sec.  14.  That  all  ex  parte 
ivits  required  to  be  made  under  this  act,  or  the  act  of  which  it  is  amenda- 
torj  may  he  verified  before  any  officer  authorized  to  administer  oaths  within 
the  land  dis1  rict  where  the  claims  may  i><:  situated. 

Bee  Bee.  2321 


§§  2336-9  MINERAL    STATUTES.  393 

§  2336.  Where  veins  intersect,  etc. — Where  two  or  mure 
veins  intersect  or  cross  each  other,  priority  of  title  shall  govern, 
and  such  prior  location  shall  be  entitled  to  all  ore  or  mineral 
contained  within  the  space  of  intersection  ;  but  the  subsequent 
location  shall  have  the  right  of  way  through  the  space  of  inter- 
section for  the  purposes  of  the  convenient  working  of  the  mine. 
And  where  two  or  more  veins  unite,  the  oldest  or  prior  location 
shall  take  the  vein  below  the  point  of  union,  including  all  the 
space  of  intersection. 
Sec.  14  of  the  Act  of  1872,  17  U.  S.  Stat.  96,  was  the  same  as  the  above. 

§  2337.  Patents  for  non-mineral  lands,  etc. — Where  non- 
mineral  land  not  contiguous  to  the  vein  or  lode  is  used  or  occu- 
pied by  the  proprietor  of  such  vein  or  lode  for  mining  or  milling 
purposes,  such  non-adjacent  surface  ground  may  be  embraced 
and  included  in  an  application  for  a  patent  for  such  vein  or  lode, 
and  the  same  may  be  patented  therewith,  subject  to  the  same 
preliminary  requirements  as  to  survey  and  notice  as  are  appli- 
cable to  veins  or  lodes ;  but  no  location  hereafter  made  of  such 
non-adjacent  land  shall  exceed  five  acres,  and  payment  for  the 
same  must  be  made  at  the  same  rate  as  fixed  by  this  chapter  for 
the  superficies  of  the  lode.  The  owner  of  a  quartz  mill  or  reduc- 
tion works,  not  owning  a  mine  in  connection  therewith,  may  also 
receive  a  patent  for  his  mill  site,  as  provided  in  this  section. 

Sec.  15  of  the  Act  of  1872,  17  U.  S.  Stat.  96,  was  the  same  as  the  above. 

See  Sees.  2320,  2324. 

§  2338.  State  or  Territorial  legislation  concerning  min- 
eral lands. — As  a  condition  of  sale,  in  the  absence  of  necessary 
legislation  by  Congress,  the  local  legislature  of  any  State  or 
Territory  may  provide  rules  for  working  mines,  involving  ease- 
ments, drainage,  and  other  necessary  means  to  their  complete 
development ;  and  those  conditions  shall  be  fully  expressed  in 
the  patent. 
Sec.  5  of  the  Act  of  1866,  14  U.  S.  Stat.  252,  was  the  same  as  the  above. 

§  2339.  Vested  rights  to  use  of  water — Right  of  way 
for  canals,  etc. — Whenever,  by  priority  of  possession,  rights 
to  the  use  of  water  for  mining,  agricultural,  manufacturing,  or 
other  purposes,  have  vested  and  accrued,  and  the  same  are 
recognized  and  acknowledged  by  the  local  customs,  laws,  and 


394  MINERAL    STATUTES.  §§  2340-1 

the  decisions  of  Courts,  the  possessors  and  owners  of  such  vested 
rights  shall  be  maintained  and  protected  in  the  same  ;  and  the 
rio'ht  of  way  for  the  construction  of  ditches  and  canals  for  the 
purposes  herein  specified  is  acknowledged  and  confirmed ;  but 
whenever  any  person,  in  the  construction  of  any  ditch  or  canal, 
injures  or  damages  the  possession  of  any  settler  on  the  public 
domain,  the  party  committing  such  injury  or  damage  shall  be 
liable  to  the  party  injured  for  such  injury  or  damage. 

Sec.  9  of  the  Act  of  1866,  14  U.  S.  Stat.  253,  was  the  same  as  the  above. 

See  Sec.  2324. 

§  2340.   Patents,  etc.,  subject  to  vested  water  rights. — 

All  patents  granted,  or  pre-emption  or  homesteads  allowed,  shall 
be  subject  to  any  vested  and  accrued  water  rights,  or  rights  to 
ditches  and  reservoirs  used  in  connection  with  such  water  rights, 
as  may  have  been  acquired  under  or  recognized  by  the  preced- 
ing section. 

Sec.  17  of  the  Act  of  1870,  16  U.  S.  Stat.  218,  read:  Sec.  17.  That  none  of  the 
rights  conferred  by  sections  five,  eight,  and  nine  of  the  act  to  which  this  net  is 
amendatory  shall  be  abrogated  by  this  act,  and  the  same  are  hereby  extended  to 
all  public  lands  affected  by  this  act;  and  all  patents  granted,  or  pre-emption  or 
homesteads  allowed,  shall  be  subject  to  any  vested  and  accrued  water  rights,  or 
rights  to  ditches  and  reservoirs  used  in  connection  with  such  water  rights  as  may 
have  been  acquired  under  or  recognized  by  the  ninth  section  of  the  act  of  which 
this  act  is  amendatory.  But  nothing  in  this  act  shall  be  construed  to  repeal, 
impair,  or  in  any  way  affect  the  provisions  of  the  "Act  granting  to  A.  Sutro  the 
right  of  way  and  other  privileges  to  aid  in  the  construction  of  a  draining  and 
exploring  tunnel  to  the  Comstock  Lode,  in  the  State  of  Nevada,"  approved  July 
twenty-fifth,  eighteen  hundred  and  sixty-six. 

See  notes  to  Sees.  2338,  2339,  2344. 

§  2341.  Non-mineral  lands  open  to  homesteads. — 
Wherever,  upon  the  lands  heretofore  designated  as  mineral 
lands,  which  have  been  excluded  from  survey  and  sale,  there 
have  been  homesteads  made  by  citizens  of  the  United  States,  or 
persons  who  have  declared  their  intention  to  become  citizens, 
which  homesteads  have  been  made,  improved,  and  used  for 
agricultural  purposes,  and  upon  which  there  have  been  no  valu- 
able mine-  <>f  gold,  silver,  cinnabar,  or  copper  discovered,  and 
which  are  properly  agricultural  lands,  the  settlers  or  owners  of 
such  homesteads  shall  have  a  right  of  pre-emption  thereto,  and 
shall  he  entitled  to  purchase  the  same  at  the  price  of  one  dollar 
and  twenty-five  cents  per  acre,  and  in  quantity  not  to  exceed  one 


§§  2342-5  MINERAL    STATUTES.  395 

hundred  and  sixty  acres ;  or  they  may  avail  themselves  of  the 
provisions  of  chapter  five  of  this  title,  relating  to  "  Homesteads." 

See.  10  of  the  Act  of  1866,  14  IT.  S.  Stat.  253,  was  substantially  the  same  as  the 
above,  with  the  addition  of  the  following  words,  after  the  words  "one  hundred 
and  sixty  acres,"  thirteenth  line:  "or  said  parties  may  avail  themselves  of  the 
provisions  of  the  Act  of  Congress,  approved  May  twentieth,  eighteen  hundred 
and  sixty-two,  entitled  'An  act  to  secure  homesteads  to  actual  settlers  on  the 
public  domain,'  and  acts  amendatory  thereof." 

See  Sec.  2342. 

§  2342.   Mineral  lands,  how  set  apart  as  agricultural. — 

Upon  the  survey  of  the  lands  described  in  the  "preceding  sec- 
tion, the  Secretary  of  the  Interior  may  designate  and  set  apart 
such  portions  of  the  same  as  are  clearly  agricultural  lands, 
which  lands  shall  thereafter  be  subject  to  pre-emption  and  sale 
as  other  public  lands,  and  be  subject  to  all  the  laws  and  regula- 
tions applicable  to  the  same. 

Sec.  11  of  the  Act  of  1866,  14  IT.  S.  Stat.  253,  was  the  same  as  the  above. 

Sec  Sees.  2341,  2258. 

§  2343.  Power  of  the  President  to  provide  districts 
and  officers. — The  President  is  authorized  to  establish  addi- 
tional land  districts,  and  to  appoint  the  necessary  officers  under 
existing  laws,  wherever  he  may  deem  the  same  necessary  for  the 
public  convenience  in  executing  the  provisions  of  this  chapter. 
Sec.  7  of  the  Act  of  1866,  14  IT.  S.  Stat.  252,  was  the  same  as  the  above. 

§  2344.  Provisions  of  this  chapter  not  to  affect  certain 
rights. — Nothing  contained  in  this  chapter  shall  be  construed  to 
impair,  in  any  way,  rights  or  interests  in  mining  property  ac- 
quired under  existing  laws  ;  nor  to  affect  the  provisions  of  the 
Act  entitled  "  An  Act  granting  to  A.  Sutro  the  right  of  way 
and  other  privileges  to  aid  in  the  construction  of  a  draining  and 
exploring  tunnel  to  the  Comstock  Lode,  in  the  State  of  Nevada," 
approved  July  twenty-fifth,  eighteen  hundred  and  sixty-six. 

For  Sec.  17  of  the  Act  of  1870,  16  U.  S.  Stat.  218,  see  note  to  Sec.  2340,  Ante. 
•  Sec.  8  of  the  Act  of  1866,  14  U.  S.  Stat.  253,  read:  Sec.  8.  That  the  right  of  way 
for  the  construction  of  highways  over  public  lands,  not  reserved  for  public  uses, 
is  hereby  granted. 

The  last  clause  of  Sec.  16  of  the  Act  of  1872,  17  IT.  S.  Stat.  96.  read  as  follows: 
"Provided,  That  nothing  contained  in  this  act  shall  be  construed  to  impair,  in 
any  way,  rights  or  interests  in  mining  property  acquired  under  existing  laws." 

§  2345.   Mineral  lands  in  certain  States  excepted. — The 

provisions  of  the  preceding  sections  of  this   chapter   shall  not 


396  MINERAL    STATUTES.  §§  2346-7 

apply  to  the  mineral  lands  situated  in  the  States  of  Michigan, 
Wisconsin,  and  Minnesota,  which  are  declared  free  and  open  to 
exploration  and  purchase,  according  to  legal  subdivisions,  in  like 
manner  as  before  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two.  And  any  bona  fide  entry  of  such  lands  within  the 
States  named,  since  the  tenth  day  of  May,  eighteen  hundred  and 
seventy-two,  may  be  patented  without  reference  to  any  of  the 
foregoing  provisions  of  this  chapter.  Such  lands  shall  be 
offered  for  public  sale  in  the  same  manner,  at  the  same  minimum 
price,  and  under  the  same  rights  of  pre-emption  as  other  public 

lands. 
Act  of  Feb.  18th,  1873,  17  TJ .  S.  Stat.  465,  is  to  the  same  effect. 

§  2346.    What  grants  not  to  include  mineral  lands. — No 

act  passed  at  the  first  session  of  the  Thirty-eighth  Congress, 
granting  lands  to  States  or  corporations  to  aid  in  the  construction 
of  roads  or  for  other  purposes,  or  to  extend  the  time  of  grants 
made  prior  to  the  thirtieth  day  of  January,  eighteen  hundred  and 
sixty-five,  shall  be  so  construed  as  to  embrace  mineral  lands, 
which  in  all  cases  are  reserved  exclusively  to  the  United  States, 
unless  otherwise  specially  provided  in  the  act  or  acts  making 

the  grant. 

Act  of  Jan.  30th,  1805,  13  U.  S.  Stat.  567,  was  the  same  as  the  above. 

§  2347.  Entry  of  coal  lands. — Every  person  above  the  age 
of  twenty-one  years,  who  is  a  citizen  of  the  United  States,  or 
who  has  declared  his  intention  to  become  such,  or  any  associa- 
tion of  persons  severally  qualified  as  above,  shall,  upon  appli- 
cation to  the  register  of  the  proper  land  office,  have  the  right  to 
enter,  by  legal  subdivisions,  any  quantity  of  vacant  coal  lands  of 
the  United  States  not  otherwise  appropriated  or  reserved  by 
competent  authority,  not  exceeding  one  hundred  and  sixty  acres 
to  such  individual  person,  or  three  hundred  and  twenty  acres  to 
-ihIi  association,  upon  payment  to  the  receiver  of  not  less  than 
tin  dollars  per  acre  for  such  lands,  where  the  same  shall  be 
situated  more  than  fifteen  miles  from  any  completed  railroad, 
and  not  less  than  twenty  dollars  per  acre  for  such  lands  as  shall 
be  within  fifteen  miles  of  such  road. 

Bee.  l,  Act  "I  L873,  17  U.  B.  Stat,  607,  is  Identical  with  tlio  above. 


§§  2348-50  MINERAL    STATUTES.  397 

§  2348.  Pre-emption  of  coal  lands. — Any  person  or  as- 
sociation of  persons  severally  qualified,  as  above  provided,  who 
have  opened  and  improved,  or  shall  hereafter  open  and  improve, 
any  coal  mine  or  mines  upon  the  public  lands,  and  shall  be  in 
actual  possession  of  the  same,  shall  be  entitled  to  a  preference- 
right  of  entry,  under  the  preceding  section,  of  the  mines  so 
opened  and  improved  :  Provided,  That  when  any  association  of 
not  less  than  four  persons,  severally  qualified  as  above  provided, 
shall  have  expended  not  less  than  five  thousand  dollars  in  work- 
ing and  improving  any  such  mine  or  mines,  such  association  may 
enter  not  exceeding  six  hundred  and  forty  acres,  including  such 
mining  improvements. 
Sec.  2,  Act  of  1873,  17  IT.  S.  Stat.  G07,  is  identical  with  the  ahove. 

§  2349.  Pre-emption  of  coal  lands — When  claims  to 
be  presented. — All  claims  under  the  preceding  section  must  be 
presented  to  the  register  of  the  proper  land  district  within  sixty 
days  after  the  date  of  actual  possession  and  the  commencement 
of  improvements  on  the  land,  by  the  filing  of  a  declaratory 
statement  therefor ;  but  when  the  township  plat  is  not  on  file  at 
the  date  of  such  improvement,  filing  must  be  made  within  sixty 
days  from  the  receipt  of  such  plat  at  the  district  office  ;  and 
where  the  improvements  shall  have  been  made  prior  to  the  ex- 
piration of  three  months  from  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  sixty  days  from  the  expiration  of 
such  three  months  shall  be  allowed  for  the  filino;  of  a  declara- 
tory  statement,  and  no  sale  under  the  provisions  of  this  section 
shall  be  allowed  until  the  expiration  of  six  months  from  the 
third  day  of  March,  eighteen  hundred  and  seventy-three. 
Sec.  3,  Act  of  1873,  17  U.  S.  Stat.  607,  was  the  same  as  the  above 

§  2350.  Only  one  entry  allowed. — The  three  preceding 
sections  shall  be  held  to  authorize  only  one  entry  by  the  same 
person  or  association  of  persons ;  and  no  association  of  persons 
any  member  of  which  shall  have  taken  the  benefit  of  such  sections, 
either  as  an  individual  or  as  a  member  of  any  other  association, 
shall  enter  or  hold  any  other  lands  under  the  provisions  thereof ; 
and  no  member  of  any  association  which  shall  have  taken  the 
benefit  of  such  sections  shall  enter  or  hold  any  other  lands  under 
their  provisions ;  and  all  persons  claiming  under  section  twenty- 


398 


MINERAL    STATUTES. 


2351-2 


three  hundred  and  forty-eight  shall  be  required  to  prove  their 
respective  rights  and  pay  for  the  lands  filed  upon  within  one 
year  from  the  time  prescribed  for  filing  their  respective  claims  ; 
and  upon  failure  to  file  the  proper  notice  or  to  pay  for  the  land 
within  the  required  period,  the  same  shall  be  subject  to  entry  by 
any  other  qualified  applicant. 
Sec.  4,  Act  of  1873,  17  U.  S.  Stat.  607,  was  the  same  as  the  above. 

§  2351.  Conflicting  claims. — In  case  of  conflicting  claims 
upon  coal  lands  where  the  improvements  shall  be  commenced, 
after  the  third  day  of  March,  eighteen  hundred  and  seventy- 
three,  priority  of  possession  and  improvement,  followed  by 
proper  filing  and  continued  good  faith,  shall  determine  the 
preference-right  to  purchase.  And  also  where  improvements 
have  already  been  made  prior  to  the  third  day  of  March,  eight- 
een hundred  and  seventy-three,  division  of  the  land  claimed  may 
be  made  by  legal  subdivisions,  to  include,  as  near  as  may  be,  the 
valuable  improvements  of  the  respective  parties.  The  Com- 
missioner of  the  General  Land  Office  is  authorized  to  issue  all 
needful  rules  and  regulations  for  carrying  into  effect  the  pro- 
visions of  this  and  the  four  preceding  sections. 

Sec.  5,  Act  of  1873,  17  U.  S.  Stat.  607,  was  the  same  as  the  above. 

§  2352.  Existing  rights. — Nothing  in  the  five  preceding 
sections  shall  be  construed  to  destroy  or  impair  any  rights  which 
may  have  attached  prior  to  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  or  to  authorize  the  sale  of  lands 
valuable  for  mines  of  gold,  silver,  or  copper. 

Sec.  6,  Act  of  1873,  17  U.  S.  Stat.  607,  was  the  same  as  the  above. 


Miscellaneous  Provisions. 


§    910.  Possessory  actions  for  recovery  of  mining  titles. 

5  2288.  Fees  and  commissions  of  registers  and  receivers. 

|  'JiioK.  Lands  not  BttbjdCt  to  pre-emption. 

§  2866.  Title  to  town-lots  subject  to  mineral  rights. 

|  2406.  Public  surveys  extended  over  mineral  lands. 


§§  910,  2238        MINERAL  STATUTES.  399 

§  '2471.    Penalty  for  false  making  or  altering  instruments  concerning  mineral 

lands  in  California. 
§  2472.     Penalty  for  false  making  or  dating  instruments  concerning  mineral 

lands  on  Mexican  grants  in  California. 
§  2473.    Penalty  for  presenting  false  or  counterfeited  papers,  or  prosecuting 

fraudulent  suit  for  mineral  lands  in  California. 

§  910.  Possessory  actions  concerning  mining  titles. — 

No  possessory  action  between  persons,  in  any  Court  of  the 
United  States,  for  the  recovery  of  any  mining  title,  or  for  dam- 
ages to  any  such  title,  shall  be  affected  by  the  fact  that  the 
paramount  title  to  the  land  in  which  such  mines  lie  is  in  the 
United  States ;  but  each  case  shall  be  adjudged  by  the  law  of 
possession. 

Sec.  9,  Act  of  Feb.  27th,  1S65,  13  U.  S.  Stat.  441. 

§  2238.   Registers'  and  receivers'  fees  and  commissions. 

— Registers  and  receivers,  in  addition  to  their  salaries,  shall  be 
allowed  each  the  following  fees  and  commissions,  namely : 

1.  A  fee  of  one  dollar  for  each  declaratory  statement  filed  and 
for  services  in  acting  on  pre-emption  claims. 

2.  A  commission  of  one  per  centum  on  all  moneys  received 
at  each  receiver's  office. 

3.  A  commission  to  be  paid  by  the  homestead  applicant,  at 
the  time  of  entry,  of  one  per  centum  on  the  cash  price,  as  fixed 
by  law,  of  the  land  applied  for ;  and  a  like  commission  when 
the  claim  is  finally  established,  and  the  certificate  therefor  issued 
as  the  basis  of  a  patent. 

4.  The  same  commission  on  lands  entered  under  any  law  to 
encourage  the  growth  of  timber  on  western  prairies,  as  allowed 
when  the  like  quantity  of  land  is  entered  with  money. 

5.  For  locating  military  bounty-land  warrants,  issued  since 
the  eleventh  day  of  February,  eighteen  hundred  and  forty-seven, 
and  for  locating  agricultural  college  land  scrip,  the  same  com- 
mission, to  be  paid  by  the  holder  or  assignee  of  each  warrant 
or  scrip,  as  is  allowed  for  sales  of  the  public  lands  for  cash, 
at  the  rate  of  one  dollar  and  twenty-five  cents  per  acre. 

6.  A  fee,  in  donation  cases,  of  five  dollars  for  each  final  cer- 
tificate for  one  hundred  and  sixty  acres  of  land,  ten  dollars  for 
three  hundred  and  twenty  acres,  and  fifteen  dollars  for  six 
hundred  and  forty  acres. 


400  MINERAL  STATUTES.  §  2258 

7.  In  the  location  of  lands  by  States  and  corporations  under 
grants  from  Congress  for  railroads  and  other  purposes,  (except 
for  agricultural  colleges)  a  fee  of  one  dollar  for  each  final  loca- 
tion of  one  hundred  and  sixty  acres ;  to  be  paid  by  the  State  or 
corporation  making  such  location. 

8.  A  fee  of  five  dollars  per  diem  for  superintending  public- 
land  sales  at  their  respective  offices ;  and,  to  each  receiver, 
mileage  in  going  to  and  returning  from  depositing  the  public 
moneys  received  by  him. 

9.  A  fee  of  five  dollars  for  filing  and  acting  upon  each  appli- 
cation for  patent  or  adverse  claim  filed  for  mineral  lands,  to  be 
paid  by  the  respective  parties. 

10.  Registers  and  receivers  are  allowed,  jointly,  at  the  rate  of 
fifteen  cents  per  hundred  words  for  testimony  reduced  by  them 
to  writing  for  claimants,  in  establishing  pre-emption  and  home- 
stead rights. 

11.  A  like  fee  as  provided  in  the  preceding  subdivision,  when 
such  writing  is  done  in  the  land  office,  in  establishing  claims  for 
mineral  lands. 

12.  Registers  and  receivers  in  California,  Oregon,  Washing- 
ton, Nevada,  Colorado,  Idaho,  New  Mexico,  Arizona,  Utah, 
Wyoming,  and  Montana,  are  each  entitled  to  collect  and  receive 
fifty  per  centum  on  the  fees  and  commissions  provided  for  in  the 
first,  third,  and  tenth  subdivisions  of  this  section. 

The  Subdivisions  9  and  11,  relating  to  mineral  lands,  are  substantially  the 
sain.-  as  Sec.  12  of  Act  of  May  10th,  1872,  17  U.  S.  Stat.  95. 
See  note  to  Sec.  233i. 

§  2258.  Lands  not  subject  to  pre-emption. — The  follow- 
ing classes  of  Jands,  unless  otherwise  specially  provided  for  by 
law,  Bhall  not  be  subject  to  the  rights  of  pre-emption,  to  wit: 

1.  Lands  included  in  any  reservation  by  any  treaty,  law,  or 
proclamation  of  the  President,  for  any  purpose. 

2.  Lands  included  within  the  limits  of  any  incorporated 
town,  or  selected  as  the;  site  of  a  city  or  town. 

3.  Lands  actually  settled  and  occupied  for  purposes  of  trade 
and  business,  and  not    for  agriculture. 

4.  Lands  on  which  are  situated  any  known  salines  or  mines. 
Sec.  10,  Act  of  Sept.  4th,  1841,  S  U.  s.  Stat.  l.v.. 

See  Sec.  3242. 


§§  2386,  2406,  2471      mineral  statutes.  401 

§  2386.   Title  to  town  lots  subject  to  mineral  rights. — 

Where  mineral  veins  are  possessed,  which  possession  is  recog- 
nized by  local  authority,  and  to  the  extent  so  possessed  and 
recognized,  the  title  to  town  lots  to  be  acquired  shall  be  subject 
to  such  recognized  possession  and  the  necessary  use  thereof; 
but  nothing  contained  in  this  section  shall  be  so  construed  as  to 
recognize  any  color  of  title  in  possessors  for  mining  purposes, 
as  against  the  United  States. 
Sec.  2,  Act  of  March  3d,  1805,  13  U.  S.  Stat.  530. 

§  2406.  Public  surveys  extended  over  mineral  lands. — 

There  shall  be  no  further  geological  survey  by  the  Government, 
unless  hereafter  authorized  by  law.  The  public  surveys  shall 
extend  over  all  mineral  lands  ;  and  all  subdividing  of  surveyed 
lands  into  lots  less  than  one  hundred  and  sixty  acres  may  be  done 
by  county  and  local  surveyors  at  the  expense  of  claimants  ;  but 
nothing  in  this  section  contained  shall  require  the  survey  of 
waste  or  useless  lands. 

Sec.  9,  Act  of  July  9th,  1870,  16  U.  S.  Stat.  218. 
See  Sec.  2334 

§  2471.  Penalty  for  offenses  concerning  mineral  lands 
in  California. — Every  person  who  falsely  makes,  alters,  forges, 
or  counterfeits,  or  causes  or  procures  to  be  falsely  made,  altered, 
forged,  or  counterfeited  ;  or  willingly  aids  and  assists  in  the  false 
making,  altering,  forging,  or  counterfeiting  any  petition,  certifi- 
cate, order,  report,  decree,  concession,  denouncement,  deed,  pat- 
ent, confirmation,  disefio,  map,  expediente,  or  part  of  an  expe- 
diente,  or  any  title  paper,  or  evidence  of  right,  title,  or  claim  to 
lands,  mines,  or  minerals  in  California,  or  any  instrument  of 
writing:  whatever  in  relation  to  lands  or  mines  or  minerals  in  the 
State  of  California,  for  the  purpose  of  setting  up  or  establish- 
ing against  the  United  States  any  claim,  right,  or  title  to  lands, 
mines,  or  minerals  within  the  State  of  California,  or  for  the 
purpose  of  enabling  any  person  to  set  up  or#establish  any  such 
claim ;  and  every  person,  who,  for  such  purpose,  utters  or  pub- 
lishes as  true  and  genuine  any  such  false,  forged,  altered,  or 
counterfeited  petition,  certificate,  order,  report,  decree,  conces- 
sion, denouncement,  deed,  patent,  confirmation,  disefio,  map, 
expediente  or  part  of  an  expediente,  title-paper,  evidence  of 
W.  C— 26. 


402  MINERAL    STATUTES.  §§  2472-3 

right,  title,  or  claim  to  lands  or  mines  or  minerals  in  the  State 
of  California,  or  any  instrument  of  writing  whatever  in  relation 
to  lands  or  mines  or  minerals  in  the  State  of  California,  shall  be 
punishable  by  imprisonment  at  hard  labor  not  less  than  three 
years  and  not  more  than  ten  years,  and  by  a  fine  of  not  more 
than  ten  thousand  dollars. 
Sec.  1,  Act  of  May  18th,  1858,  11  U.  S.  Stat.  290. 

§  2472.  Penalty  for  offenses  concerning  Mexican  grants 
in  California. — Every  person  who  makes,  or  causes  or  procures 
to  be  made,  or  willingly  aids  and  assists  in  making  any  falsely 
dated  petition,  certificate,  order,  report,  decree,  concession,  de- 
nouncement, deed,  patent,  confirmation,  disefio,  map,  expediente 
or  part  of  an  expediente,  or  any  title-paper,  or  written  evidence 
of  right,  title,  or  claim,  under  Mexican  authority,  to  any  lands, 
mines,  or  minerals  in  the  State  of  California,  or  any  instrument 
of  writino-  in  relation  to  lands  or  mines  or  minerals  in  the  State 
of  California,  having  a  false  date,  or  falsely  purporting  to  be 
made  by  any  Mexican  officer  or  authority  prior  to  the  seventh 
day  of  July,  eighteen  hundred  and  forty-six,  for  the  purpose  of 
setting  up  or  establishing  any  claim  against  the  United  States 
to  lands  or  mines  or  minerals  within  the  State  of  California,  or 
of  enabling  any  person  to  set  up  or  establish  any  such  claim ; 
and  every  person  who  signs  his  name  as  governor,  secretary,  or 
other  public  officer  acting  under  Mexican  authority,  to  any  in- 
strument of  writing  falsely  purporting  to  be  a  grant,  concession, 
or  denouncement  under  Mexican  authority,  and  during  its  ex- 
istence in  California,  of  lands,  mines,  or  minerals,  or  falsely 
purporting  to  be  an  informe,  report,  record,  confirmation,  or 
other  proceeding  on  application  for  a  grant,  concession,  or  de- 
nouncement under  Mexican  authority,  during  its  existence  in 
California,  of  lands,  mines,  or  minerals,  shall  be  punishable  as 
prescribed  in  the  preceding  section. 
Sec.  2,  Act  of  May  18th,  1858, 11  U.  S.  Stat.  291. 

§  2473.  Penalty  for  prosecuting  fraudulent  suits,  etc., 
in  California. — Every  person  who,  for  the  purpose  of  setting 
up  or  establishing  any  claim  against  the  United  States  to  lands, 
mines,  or  minerals  within  the  State  of  California,  presents,  or 
causes  or  procures  to  be  presented,  before  any  Court,  judge,  com- 


§  5596  MINERAL  STATUTES.  403 

mission,  or  commissioner,  or  other  officer  of  the  United  States, 
any  false,  forged,  altered,  or  counterfeited  petition,  certificate, 
order,  report,  decree,  concession,  denouncement,  deed,  patent, 
diseiio,  map,  expediente  or  part  of  an  expediente,  title-paper,  or 
written  evidence  of  right,  title,  or  claim  to  lands,  minerals,  or 
mines  in  the  State  of  California,  knowing  the  same  to  be  false, 
forged,  altered,  or  counterfeited,  or  any  falsely  dated  petition, 
certificate,  order,  report,  decree,  concession,  denouncement,  deed, 
patent,  confirmation,  diseiio,  map,  expediente  or  part  of  an 
expediente,  title-paper,  or  written  evidence  of  right,  title,  or 
claim  to  lands,  mines,  or  minerals  in  California,  knowing  the 
same  to  be  falsely  dated ;  and  every  person  who  prosecutes  in 
any  Court  of  the  United  States,  by  appeal  or  otherwise,  any 
claim  against  the  United  States  for  lands,  mines,  or  minerals  in 
California,  which  claim  is  founded  upon,  or  evidenced  by,  any 
petition,  certificate,  order,  report,  decree,  concession,  denounce- 
ment, deed,  patent,  confirmation,  diseiio,  map,  expediente  or  part 
of  an  expediente,  title-paper,  or  written  evidence  of  right,  title,  or 
claim,  which  has  been  forged,  altered,  counterfeited,  or  falsely 
dated,  knowing  the  same  to  be  forged,  altered,  counterfeited,  or 
falsely  dated,  shall  be  punishable  as  prescribed  in  section  twenty- 
four  hundred  and  seventy-one. 

Sec.  3,  Act  of  May  18th,  1858,  11  IT.  S.  Stat.  291- 

§  5596.   Repealing  certain  acts  passed  prior  to  Decem- 
ber 1st,  1873. 

All  acts  of  Congress  passed  prior  to  said  first  day  of  December,  one  thousand 
eight  hundred  and  seventy-three,  any  portion  of  which  is  embraced  in  any  sec- 
tion of  said  revision,  are  hereby  repealed,  and  the  section  applicable  thereto 
shall  be  in  force  in  lieu  thereof;  all  parts  of  such  acts  not  contained  in  such  re- 
vision, having  been  repealed  or  superseded  by  subsequent  acts,  or  not  being 
general  or  permanent  in  their  nature:  Provided,  That  the  incorporation  into  said 
revision  of  any  general  and  permanent  provision,  taken  from  an  act  making  ap- 
propriations, or  from  an  act  containing  other  provisions  of  a  private,  local,  or 
temporary  character,  shall  not  repeal,  or  in  any  way  affect  any  appropriation, 
or  any  provision  of  a  private,  local,  or  temporary  character,  contained  in  any  of 
said  acts;  but  the  same  shall  remain  in  force;  and  all  acts  of  Congress  passed 
prior  to  said  last  named  day,  no  part  of  which  are  embraced  in  said  revision, 
shall  not  be  affected  or  changed  by  its  enactment. 

Approved  June  22d,  1874. 


Instructions  of  the   Land   Department, 

FEBRUARY   1st,    1877. 


MINERAL,  LANDS  OPEN  TO  EXPLORATION,  OCCUPATION,  AND  PURCHASE. 

1.  It  will  be  perceived  that  by  the  foregoing  provisions  of  law  the  mineral 
lands  in  the  public  domain,  surveyed  or  unsurveyed,  are  open  to  exploration, 
occupation,  and  purchase  by  all  citizens  of  the  United  States,  and  all  those  who 
have  declared  their  intention  to  become  such. 

STATUS  OF  LODE  CLAIMS  LOCATED  PRIOR    TO  MAY  10TH,    1872. 

2.  By  an  examination  of  the  several  sections  of  the  Revised  Statutes  it  will  be 
seen  that  the  status  of  lode  claims  located  previous  to  the  10th  May,  1872,  is  not 
changed  with  regard  to  their  extent  along  the  lode  or  width  of  surface,  such  claims 
being  restricted  and  governed  both  as  to  their  lateral  and  linear  extent  by  the 
State,  Territorial,  or  local  laws,  customs,  or  regulations  which  were  in  force  in 
the  respective  districts  at  the  date  of  such  locations. 

3.  Mining  rights  acquired  under  such  previous  locations  are,  however,  enlarged 
by  said  Revised  Statutes  in  the  following  respect,  viz :  The  locators  of  all  such 
previously  taken  veins  or  lodes,  their  heirs  and  assigns,  so  long  as  they  comply 
with  the  laws  of  Congress  and  with  State,  Territorial,  or  local  regulations  not  in 
conflict  therewith,  governing  mining  claims,  are  invested  with  the  exclusive 
possessory  right  of  all  the  surface  included  within  the  lines  of  their  locations, 
and  of  all  veins,  lodes,  or  ledges  throughout  their  entire  depth,  the  top  or  apex 
of  which  lies  inside  of  such  surface  lines  extended  downward  vertically, 
although  such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular 
in  their  course  downward  as  to  extend  outside  the  vertical  side-lines  of  such  lo- 
cations at  the  surface,  it  being  expressly  provided,  however,  that  the  right  of 
possession  to  such  outside  parts  of  said  veins  or  ledges  shall  be  confined  to  such 
portions  thereof  as  lie  between  vertical  planes  drawn  downward,  as  aforesaid, 
through  the  end-lines  of  their  locations  so  continued  in  their  own  direction  that 
such  planes  will  intersect  such  exterior  parts  of  such  veins,  lodes,  or  ledges;  no 
right  being  granted,  however,  to  the  claimant  of  such  outside  portion  of  a  vein 
or  ledge  to  enter  upon  the  surface  location  of  another  claimant. 

4.  It  is  to  be  distinctly  understood,  however,  that  the  law  limits  the  possessory 
right  to  veins,  lodes,  or  ledges  other  than  the  one  named  in  the  original  location, 
to  uch  as  were  not-  adrersr.l '//  rluimcd  on  May  10th,  1872,  and  that  where  such 
other  vein  or  ledge  was  so  adversely  claimed  at  that  date,  the  right  of  the  party 

bo  adversely  claiming  is  In  noway  impaired  by  the  provisions  of  the  Revised 

Statutes. 

5.  In  order  to  hold  t  lie  possessory  title  to  a  mining  claim  located  prior  to  May 
loth,  L872,  and  for  which  a  patent  lias  not,  been  issued,  the  law  requires  that  ten 
dollars  shall  be  expended  annually  in  labor  or  improvements  on  each  claim  of 
one  hundred  feet  OH  the  course  of  the  vein  or  lode  until  a  patent  shall  have  been 


INSTRUCTIONS.  405 

issued  therefor;  but  where  a  number  of  such  claims  are  held  in  common  upon 
the  same  vein  or  lode,  the  aggregate  expenditure  that  would  be  necessary  to  hold 
all  the  claims,  at  the  rate  of  ten  dollars  per  hundred  feet,  may  be  made  upon 
any  one  claim ;  a  failure  to  comply  with  this  requirement  in  any  one  year  sub- 
jecting the  claim  upon  which  such  failure  occurred  to  relocation  by  other  par- 
ties, the  same  as  if  no  previous  location  thereof  had  ever  been  made,  unless  the 
claimants  under  the  original  location  shall  have  resumed  work  thereon  after 
such  failure  and  before  such  relocation.  The  first  annual  expenditure  upon 
claims  of  this  class  should  have  been  performed  subsequent  to  May  10th,  1872, 
and  prior  to  January  1st,  1875.  From  and  after  January  1st,  1875,  the  required 
amount  must  be  expended  annually  until  patent  issues. 

6.  Upon  the  failure  of  any  one  of  several  co-owners  of  a  vein,  lode,  or  ledge, 
which  has  not  been  patented,  to  contribute  his  proportion  of  the  expenditures 
necessary  to  hold  the  claim  or  claims  so  held  in  ownership  in  common,  the  co- 
owners  who  have  performed  the  labor,  or  made  the  improvements,  as  required 
by  said  Revised  Statutes,  may,  at  the  expiration  of  the  year,  give  such  delin- 
quent co-owner  personal  notice  in  writing,  or  notice  by  publication  in  the  news- 
paper published  nearest  the  claim,  for  at  least  once  a  week  for  ninety  days;  and 
if  upon  the  expiration  of  ninety  days  after  such  notice  in  writing,  or  upon  the 
expiration  of  one  hundred  and  eighty  days  after  the  first  newspaper  publica- 
tion of  notice,  the  delinquent  co-owner  shall  have  failed  to  contribute  his  pro- 
portion to  meet  such  expenditure  or  improvements,  his  interest  in  the  claim  by 
law  passes  to  his  co-owners  who  have  made  the  expenditures  or  improvements 
as  aforesaid. 

PATENTS  FOR  VEINS  OR  LODES    HERETOFORE  ISSUED. 

7.  Rights  under  patents  for  veins  or  lodes  heretofore  granted  under  previous 
legislation  of  Congress,  are  enlarged  by  the  Revised  Statutes  so  as  to  invest  the 
patentee,  his  heirs  or  assigns,  with  title  to  all  veins,  lodes,  or  ledges  throughout 
their  entire  depth,  the  top  or  apex  of  which  lies  within  the  end  and  side  bound- 
ary-lines of  his  claim  on  the  surface,  as  patented,  extended  downward  vertically, 
although  such  veins,  lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in 
their  course  downward  as  to  extend  outside  the  vertical  side-lines  of  the  claim 
at  the  surface.  The  right  of  possession  to  such  outside  parts  of  such  veins  or 
ledges  to  be  confined  to  such  portions  thereof  as  lie  between  vertical  planes 
drawn  downward  through  the  end-lines  of  the  claim  at  the  surface,  so  continued 
in  their  own  direction  that  such  planes  will  intersect  such  exterior  parts  of  such 
veins  or  ledges,  it  being  expressly  provided,  however,  that  all  veins,  lodes,  or 
ledges,  the  top  or  apex  of  which  lies  inside  such  surface  locations,  other  than  the 
one  named  in  the  patent,  which  were  adversely  claimed  on  the  10th  May,  1872,  are 
excluded  from  such  conveyance  by  patent. 

8.  Applications  for  patents  for  mining  claims  pending  at  the  date  of  the  Act 
of  May  10th,  1872,  may  be  prosecuted  to  final  decision  in  the  General  Land 
Office,  and  where  no  adverse  rights  are  affected  thereby,  patents  will  be  issued, 
in  pursuance  of  the  provisions  of  the  Revised  Statutes. 

MANNER  OF   LOCATING  CLAIMS   ON  VEINS   OR  LODES   AFTER  MAY   lOTH,  1872. 

9.  From  and  after  the  10th  May,  1872,  any  person  who  is  a  citizen  of  the  United 
States,  or  who  has  declared  his  intention  to  become  a  citizen,  may  locate,  record, 
and  hold  a  mining  claim  of  fifteen  hundred  linear  feet  along  the  course  of  any 
mineral  vein  or  lode  subject  to  location;  or  an  association  of  persons,  severally 
qualified  as  above,  may  make  joint  location  of  such  claim  of  fifteen  hundred 
feet,  but  in  no  event  can  a  location  of  a  vein  or  lode  made  subsequent  to  May 


406  INSTRUCTIONS. 

10th,  1872,  exceed  fifteen  hundred  feet  along  the  course  thereof,  whatever  may 
be  the  number  of  persons  composing  the  association. 

10.  With  regard  to  the  extent  of  surface  ground  adjoining  a  vein  or  lode,  and 
claimed  for  the  convenient  working  thereof,  the  Revised  Statutes  provide  that 
the  lateral  extent  of  locations  of  veins  or  lodes  made  after  May  10th,  1872,  shall 
in  no  case  exceed  three  hundred  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  and  that  no  such  surface  rights  shall  be  limited  by  any  mining  regula- 
tions to  less  than  twenty-five  feet  on  each  side  of  the  middle  of  the  vein  at  the 
surface,  except  where  adverse  rights  existing  on  the  10th  May,  1872,  may  render 
such  limitation  necessary,  the  end-lines  of  such  claims  to  be  in  all  cases  parallel 
to  each  other. 

11.  By  the  foregoing  it  will  be  perceived  that  no  lode  claim  located  after  the 
10th  May,  1872,  can  exceed  a  parallelogram  fifteen  hundred  feet  in  length  by 
six  hundred  feet  in  width,  but  whether  surface  ground  of  that  width  can  be 
taken,  depends  upon  the  local  regulations,  or  State  or  Territorial  laws,  in  force 
in  the  several  mining  districts ;  and  that  no  such  local  regulations,  or  State  or 
Territorial  laws,  shall  limit  a  vein  or  lode  claim  to  less  than  fifteen  hundred  feet 
along  the  course  thereof,  whether  the  location  is  made  by  one  or  more  persons, 
nor  can  surface  rights  be  limited  to  less  than  fifty  feet  in  width,  unless  adverse 
claims  existing  on  the  10th  day  of  May,  1872,  render  such  lateral  limitation 
necessary. 

12.  It  is  provided  by  the  Revised  Statutes  that  the  miners  of  each  district  may 
make  rules  and  regulations  not  in  conflict  with  the  laws  of  the  United  States, 
or  of  the  State  or  Territory  in  which  such  districts  are  respectively  situated, 
governing  the  location,  manner  of  recording,  and  amount  of  work  necessary  to 
hold  possession  of  a  claim.  They  likewise  require  that  the  location  shall  be  so 
distinctly  marked  on  the  ground  that  its  boundaries  may  be  readily  traced. 
This  is  a  very  important  matter,  and  locators  cannot  exercise  too  much  care  in 
defining  their  locations  at  the  outset,  inasmuch  as  the  law  requires  that  all 
records  of  mining  locations  made  subsequent  to  May  10th,  1872,  shall  contain 
the  name  or  names  of  the  locators,  the  date  of  the  location,  and  such  a  descrip- 
tion of  the  claim  or  claims  located,  by  reference  to  some  natural  object  or  perma- 
nent monument,  as  will  identify  the  claim. 

13.  The  statutes  provide  that  no  lode  claim  shall  be  recorded  until  after  the 
discovery  of  a  vein  or  lode  within  the  limits  of  the  ground  claimed;  the  object 
of  which  provision  is  evidently  to  prevent  the  incumbering  of  the  district  min- 
ing records  with  useless  locations  before  sufficient  work  has  been  done  thereon 
to  determine  whether  a  vein  or  lode  has  really  been  discovered  or  not. 

14.  The  claimant  should  therefore,  prior  to  recording  his  claim,  unless  the 
vein  can  be  traced  upon  the  surface,  sink  a  shaft,  or  run  a  tunnel  or  drift,  to  a 
sufficient  depth  therein  to  discover  and  develop  a  mineral-bearing  vein,  lode, 
or  crevice;  should  determine,  if  possible,  the  general  course  of  such  vein  in 
either  direction  from  the  point  of  discovery,  by  which  direction  he  will  be 
governed  in  marking  the  boundaries  of  his  claim  on  the  surface,  and  should 
give  the  course  and  distance  as  nearly  as  practicable  from  tho  discovery-shaft 
on  the  claim,  to  some  permanent,  well-known  points  or  objects,  such,  for  in- 
stance, as  stone  mouuments,  blazed  trees,  the  confluence  of  streams,  point  of 
intersection  of  well-known  gulches,  ravines,  or  roads,  prominent  buttes,  hills, 
etc.,  whirf)  may  be  in  tin;  Immediate  vicinity,  and  which  will  serve  to  perpetu- 
ate and  fix  the  locus  of  the  claim,  and  render  it  susceptible  of  identification  from 
the  description  thereof  given  in  tint  record  of  locations  in  the  district. 

15.  In  addil  i"ii  l"  I  be  foregoing  (lata,  (he  claimant  should  state  the  names  of 
adjoining  claims,  or,  if  none  adjoin,  the  relative  positions  of  tho  nearest  claims; 
should  drive  a  post  or  erect  a  monument  of  stones  at  each  corner  of  his  surface- 


INSTRUCTIONS.  407 

ground,  and  at  the  point  of  discovery  or  discovery-shaft  should  fix  a  post,  stake, 
or  board,  upon  which  should  be  designated  the  name  of  the  lode,  the  name  or 
names  of  the  locators,  the  number  of  feet  claimed,  and  in  which  direction  from 
the  point  of  discovery ;  it  being  essential  that  the  location  notice  filed  for  record, 
in  addition  to  the  foregoing  description,  should  state  whether  the  entire  claim 
of  fifteen  hundred  feet  is  taken  on  one  side  of  the  point  of  discovery,  or  whet  her 
it  is  partly  upon  one  and  partly  upon  the  other  side  thereof,  and  in  the  latter 
case,  how  many  feet  are  claimed  upon  each  side  of  such  discovery-point. 

16.  Within  a  reasonable  time,  say  twenty  days  after  the  location  shall  have 
been  marked  on  the  ground,  notice  thereof,  accurately  describing  the  claim  in 
manner  aforesaid,  should  be  filed  for  record  with  the  proper  recorder  ef  the  dis- 
trict, who  will  thereupon  issue  the  usual  certificate  of  location. 

17.  In  order  to  hold  the  possessory  right  to  a  location  made  since  May  10th,  1872, 
not  less  than  one  hundred  dollars'  worth  of  labor  must  be  performed,  or  improve- 
ments made  thereon,  within  one  year  from  the  date  of  such  location,  and  annu- 
ally thereafter ;  in  default  of  which  the  claim  will  be  subject  to  relocation  by  any 
other  party  having  the  necessary  qualifications,  unless  the  original  locator,  his 
heirs,  assigns,  or  legal  representatives,  have  resumed  work  thereon  after  such 
failure  and  before  such  relocation. 

18.  The  expenditures  required  upon  mining  claims  may  be  made  from  the 
surface  or  in  running  a  tunnel  for  the  development  of  such  claims,  the  Act  of 
February  11th,  1875,  providing  that  where  a  person  or  company  has  or  may  run 
a  tunnel  for  the  purpose  of  developing  a  lode  or  lodes  owned  by  said  person  or 
company,  the  money  so  expended  in  said  tunnel  shall  be  taken  and  considered 
as  expended  on  said  lode  or  lodes,  and  such  person  or  company  shall  not  be 
required  to  perform  work  on  the  surface  of  said  lode  or  lodes  in  order  to  hold 
the  same. 

19.  The  importance  of  attending  to  these  details  in  the  matter  of  location, 
labor,  and  expenditure,  will  be  the  more  readily  perceived,  when  it  is  under- 
stood that  a  failure  to  give  the  subject  proper  attention  may  invalidate  the 
claim. 

TUNXEL  RIGHTS. 

20.  Sec.  2323  provides  that  where  a  tunnel  is  run  for  the  development  of 
a  vein  or  lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tunnel 
shall  have  the  right  of  possession  of  all  veins  or  lodes  within  three  thousand 
feet  from  the  face  of  such  tunnel  on  the  line  thereof,  not  previously  known 
to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if  discovered  from  the 
surface ;  and  locations  on  the  line  of  such  tunnel  of  veins  or  lodes  not  appearing 
on  the  surface,  made  by  other  parties  after  the  commencement  of  the  tunnel, 
and  while  the  same  is  being  prosecuted  with  reasonable  diligence,  shall  be  in- 
valid; but  failure  to  prosecute  the  work  on  the  tunnel  for  six  months  shall  be 
considered  as  an  abandonment  of  the  right  to  all  undiscovered  veins  or  lodes  on 
the  line  of  said  tunnel. 

21.  The  effect  of  this  is  simply  to  give  the  proprietors  of  a  mining  tunnel  run 
in  good  faith  the  possessory  right  to  fifteen  hundred  feet  of  any  blind  lodes  cut, 
discovered,  or  intersected  by  such  tunnel,  which  were  not  previously  known  to 
exist,  within  three  thousand  feet  from  the  face  or  point  of  commencement  of  such 
tunnel,  and  to  prohibit  other  parties,  after  the  commencement  of  the  tunnel, 
from  prospecting  for  and  making  locations  of  lodes  on  the  line  thereof  and 
within  said  distance  of  three  thousand  feet,  unless  such  lodes  appear  upon  the 
surface  or  were  previously  known  to  exist. 

22.  The  term  "face,  '  as  used  in  said  section,  is  construed  and  held  to  mean 
the  first  working  face  formed  in  the  tunnel,  and  to  signify  the  point  at  which 


408  INSTRUCTIONS. 

the  tunnel  actually  enters  cover,  it  being  from  this  point  that  the  three  thousand 
feet  are  to  be  counted,  upon  which  prospecting  is  prohibited  as  aforesaid. 

23.  To  avail  themselves  of  the  benefits  of  this  provision  of  law,  the  proprie- 
tors of  a  mining  tunnel  will  be  required,  at  the  time  they  enter  cover  as  afore- 
said, to  give  proper  notice  of  their  tunnel  location,  by  erecting  a  substantial 
post,  board,  or  monument  at  the  face  or  point  of  commencement  thereof,  upon 
which  should  be  posted  a  good  and  sufficient  notice,  giving  the  names  of  the 
parties  or  company  claiming  the  tunnel  right ;  the  actual  or  proposed  course  or 
direction  of  the  tunnel ;  the  height  and  width  thereof,  and  the  course  and  distance 
from  such  face  or  point  of  commencement  to  some  permanent,  well-known  ob- 
jects in  the  vicinity  by  which  to  fix  and  determine  the  locus  in  manner  hereto- 
fore set  forth  applicable  to  locations  of  veins  or  lodes,  and  at  the  time  of  posting 
such  notice  they  shall,  in  order  that  miners  or  prospectors  may  be  enabled 
to  determine  whether  or  not  they  are  within  the  lines  of  the  tunnel,  establish 
the  boundary  lines  thereof  by  stakes  or  monuments  placed  along  such  lines  at 
proper  intervals,  to  the  terminus  of  the  three  thousand  feet  from  the  face  or  point 
of  commencement  of  the  tunnel,  and  the  lines  so  marked  will  define  and  govern 
as  to  the  specific  boundaries  within  which  prospecting  for  lodes  not  previously 
known  to  exist  is  prohibited  while  work  on  the  tunnel  is  being  prosecuted  with 
reasonable  diligence. 

24.  At  the  time  of  posting  notice  and  marking  out  the  lines  of  the  tunnel 
as  aforesaid,  a  full  and  correct  copy  of  such  notice  of  location,  defining  the 
tunnel  claim,  must  be  filed  for  record  with  the  mining  recorder  of  the  district, 
to  which  notice  must  be  attached  the  sworn  statement  or  declaration  of  the 
owners,  claimants,  or  projectors  of  such  tunnel,  setting  forth  the  facts  in  the 
case ;  stating  the  amount  expended  by  themselves  and  their  predecessors  in  in- 
terest in  prosecuting  work  thereon;  the  extent  of  the  work  performed,  and  that 
it  is  bona  fide  their  intention  to  prosecute  work  on  the  tunnel  so  located  and 
described,  with  reasonable  diligence,  for  the  development  of  a  vein  or  lode,  or 
for  the  discovery  of  mines,  or  both,  as  the  case  may  be.  This  notice  of  location 
must  be  duly  recorded,  and,  with  the  said  sworn  statement  attached,  kept  on 
the  recorder's  files  for  future  reference. 

25.  By  a  compliance  with  the  foregoing,  much  needless  difficulty  will  be 
avoided,  and  the  way  for  the  adjustment  of  legal  rights  acquired  in  virtue  of 
said  Sec.  2323  will  be  made  much  more  easy  and  certain. 

20.  This  office  will  take  particular  care  that  no  improper  advantage  is  taken 
of  this  provision  of  law  by  parties  making  or  professing  to  make  tunnel  locations, 
ostensibly  for  the  purposes  named  in  the  statute;  but  really  for  the  purpose  of 
monopolizing  the  lands  lying  in  front  of  their  tunnels  to  the  detriment  of  the 
mining  interests  and  to  the  exclusion  of  bona  fide  prospectors  or  miners ;  but 
will  hold  such  tunnel  claimants  to  a  strict  compliance  with  the  terms  of  the 
statutes  and  a  reasonable  diligence  on  their  part  in  prosecuting  tho  work  is  one 
of  the  essential  conditions  of  their  implied  contract.  Negligence  or  want  of  due 
diligence  will  be  construed  as  working  a  forfeiture  of  their  right  to  all  undis- 
covered veins  on  the  line  of  such  tunnel. 

MANNER  OF   PROCEEDING  TO   OBTAIN  GOVERNMENT    TITLE  TO  VEIN  OR  LODE 

CLAIMS. 

27.  By  Bee.  2325  authority  is  given  forgranting  titlesfor  mines  bypatentfrom 
the  Government  to  any  person,  association,  or  corporation  having  the  neces- 
sary qualifications  as  to  citizenship  and  holding  the  right  of  possession  to  a 
claim  iii  compliance  with  law. 

28.  The  claimant  in  required,  in  tin;  first  place,  to  have  a  correct  survey  of  his 
claim  made  under  authority  of  the  surveyor-general  of  the  State  or  Territory  in 


INSTRUCTIONS.  409 

which  the  claim  lies;  such  survey  to  show  with  accuracy  the  exterior  surface 
boundaries  of  the  claim,  which  boundaries  are  required  to  bo  distinctly  marked 
by  monuments  on  the  ground.  Four  plats  and  one  copy  of  the  original  field- 
notes,  in  each  case,  will  be  prepared  by  the  Surveyor-General :  one  plat  and  the 
original  field-notes  to  be  retained  in  the  office  of  the  Surveyor-General;  one  copy 
of  the  plat  to  be  given  the  claimant  for  posting  upon  the  claim;  one  plat  and  a 
copy  of  the  field-notes  to  be  given  the  claimant  for  filing  with  the  proper  register, 
to  be  finally  transmitted  by  that  officer,  with  the  other  papers  in  the  case,  to 
this  office ;  and  one  plat  to  be  sent  by  the  Surveyor-General  to  the  register  of 
the  proper  land  district,  to  be  retained  on  his  files  for  future  reference. 

29.  The  claimant  is  then  required  to  post  a  copy  of  the  plat  of  such  survey  in 
a  conspicuous  place  upon  the  claim,  together  with  notice  of  his  intention  to  ap- 
ply for  a  patent  therefor,  which  notice  will  give  the  date  of  posting,  the  name 
of  the  claimant,  the  name  of  the  claim,  mine,  or  lode;  the  mining  district  and 
county ;  whether  the  location  is  of  record,  and  if  so,  where  the  record  may  be 
found ;  the  number  of  feet  claimed  along  the  vein  and  the  presumed  direction 
thereof ;  the  number  of  feet  claimed  on  the  lode  in  each  direction  from  the  point 
of  discovery,  or  other  well-defined  place  on  the  claim;  the  name  or  names  of 
adjoining  claimants  on  the  same  or  other  lodes;  or  if  none  adjoin,  the  names  of 
the  nearest  claims,  etc. 

30.  After  posting  the  said  plat  and  notice  upon  the  premises,  the  claimant  will 
file  with  the  proper  register  and  receiver  a  copy  of  such  plat,  and  the  field-notes 
of  survey  of  the  claim,  accompanied  by  the  affidavit  of  at  least  two  credible 
witnesses  that  such  plat  and  notice  are  posted  conspicuously  upon  the  claim, 
giving  the  date  and  place  of  such  posting ;  a  copy  of  the  notice  so  posted  to  be 
attached  to,  and  form  a  part  of,  said  affidavit. 

31.  Attached  to  the  field-notes  so  filed  must  be  the  sworn  statement  of  the 
claimant  that  he  has  the  possessory  right  to  the  premises  therein  described,  in 
virtue  of  compliance  by  himself  (and  by  his  grantors,  if  he  claims  by  purchase) 
with  the  mining  rules,  regulations,  and  customs  of  the  mining  district,  State,  or 
Territory  in  which  the  claim  lies,  and  with  the  mining  laws  of  Congress;  such 
sworn  statement  to  narrate  briefly,  but  as  clearly  as  possible,  the  facts  consti- 
tuting such  compliance,  the  origin  of  his  possession,  and  the  basis  of  his  claim 
to  a  patent. 

32.  This  affidavit  should  be  supported  by  appropriate  evidence  from  the  min- 
ing recorder's  office  as  to  his  possessory  right,  as  follows,  viz:  Where  he  claims 
to  be  a  locator,  a  full,  true,  and  correct  copy  of  such  location  should  be  fur- 
nished, as  the  same  appears  upon  the  mining  records ;  such  copy  to  be  attested 
by  the  seal  of  the  recorder,  or  if  he  has  no  seal,  then  he  should  make  oath  to  the 
same  being  correct,  as  shown  by  his  records;  where  the  applicant  claims  as  a 
locator  in  company  'with  others,  who  have  since  conveyed  their  interests  in  the 
lode  to  him,  a  copy  of  the  original  record  of  location  should  be  filed,  together 
with  an  abstract  of  title  from  the  proper  recorder,  under  seal  or  oath  as  afore- 
said, tracing  the  co-locator's  possessory  rights  in  the  claim  to  such  applicant  for 
patent ;  where  the  applicant  claims  only  as  a  purchaser  for  valuable  considera- 
tion, a  copy  of  the  location  record  must  be  filed,  under  seal  or  upon  oath  as 
aforesaid,  with  an  abstract  of  title  certified  as  above  by  tbe  proper  recorder, 
tracing  the  right  of  possession  by  a  continuous  chain  of  conveyances  from  the 
original  locators  to  the  applicant. 

33.  In  the  event  of  the  mining  records  in  any  case  having  been  destroyed  by 
fire  or  otherwise  lost,  affidavit  of  the  fact  should  be  made,  and  secondary  evi- 
dence of  possessory  title  will  be  received,  which  may  consist  of  the  affidavit  of 
the  claimant,  supported  by  those  of  any  other  parties  cognizant  of  the  facts 
relative  to  his  location,  occupancy,  possession,  improvements,  etc. ;  and  in  such 


410  INSTRUCTIONS. 

case  of  lost  records,  any  deeds,  certificates  of  location  or  purchase,  or  other 
evidence  which  may  be  in  the  claimant's  possession,  and  tend  to  establish  his 
claim,  should  be  filed. 

34.  Upon  the  receipt  of  these  papers  the  register  will,  at  the  expense  of  the 
claimant,  publish  a  notice  of  such  application  for  the  period  of  sixty  days,  in  a 
newsjtaper  published  nearest  to  the  claim,  and  will  post  a  copy  of  such  notice  in 
his  office  for  the  same  period.  In  all  cases  sixty  days  must  intervene  between 
the  first  and  the  last  insertion  of  the  notice  in  such  newspaper. 

35.  The  notices  so  published  and  posted  must  be  as  full  and  complete  as 
possible,  and  embrace  all  the  data  given  in  the  notice  posted  upon  the  claim. 

36.  Too  much  care  cannot  be  exercised  in  the  preparation  of  these  notices, 
inasnmch  as  upon  their  accuracy  and  completeness  will  depend,  in  a  great 
measure,  the  regularity  and  validity  of  the  whole  proceeding. 

37.  The  claimant,  either  at  the  time  of  filing  these  papers  with  the  register,  or 
at  any  time  during  the  sixty  days'  publication,  is  required  to  file  a  certificate  of 
the  Surveyor-General  that  not  less  than  five  hundred  dollars'  worth  of  labor  has 
been  expended  or  improvements  made  upon  the  claim  by  the  applicant  or  his 
grantors;  that  the  plat  filed  by  the  claimant  is  correct;  that  the  field-notes  of 
the  survey,  as  filed,  furnish  such  an  accurate  description  of  the  claim,  as  will, 
if  incorporated  into  a  patent,  serve  to  fully  identify  the  premises,  and  that  such 
reference  is  made  therein  to  natural  objects  or  permanent  monuments  as  will 
perpetuate  and  fix  the  locus  thereof. 

38.  It  will  be  the  more  convenient  way  to  have  this  certificate  indorsed  by  the 
Surveyor-General,  both  upon  the  plat  and  field-notes  of  survey,  filed  by  the 
claimant  as  aforesaid. 

39.  After  the  sixy  days'  period  of  newspaper  publication  has  expired,  the 
claimant  will  file  his  affidavit,  showing  that  the  plat  and  notice  aforesaid 
remained  conspicuously  posted  upon  the  claim  sought  to  be  patented  during 
said  sixty  days'  publication. 

40.  Upon  the  filing  of  this  affidavit,  the  register  will,  if  no  adverse  claim  was 
filed  in  his  office  during  the  period  of  publication,  permit  the  claimant  to  pay 
for  the  land  according  to  the  area  given  in  the  plat  and  field-notes  of  survey 
aforesaid,  at  the  rate  of  five  dollars  for  each  acre  and  five  dollars  for  each  frac- 
tional part  of  an  acre,  the  receiver  issuing  the  usual  duplicate  receipt  therefor; 
after  which  the  whole  matter  will  be  forwarded  to  the  Commissioner  of  the 
General  Land  Office,  and  a  patent  issued  thereon, if  found  regular. 

41.  In  sending  up  the  papers  in  the  case  the  register  must  not  omit  certifying 
to  the  fact  that  the  notice  was  posted  in  his  office  for  the  full  period  of  sixty 
days,  such  certificate  to  state  distinctly  when  such  posting  was  done  and  how 
long  continued. 

42.  The  consecutive  series  of  numbers  of  mineral  entries  must  be  continued, 
whether  the  same  are  of  lode  or  placer  claims. 

43.  The  Surveyor-General  must  continue  to  designate  all  surveyed  mineral 
claims  as  heretofore  by  a  progressive  series  of  numbers,  beginning  with  lot  No. 
37  in  each  township;  the  claim  to  be  so  designated  at  date  of  filing  the  plat, 
iield-notes,  etc.,  in  addition  to  the  local  designation  of  the  claim;  it  being  re- 
(jnircd  in  all  cases  that  the  plat  and  field-notes  of  the  survey  of  the  claim  must, 
in  addition  to  the  reference  to  permanent  objects  in  the  neighborhood,  describe 
the  locusot  the  claim  with  reference  to  the  lines  of  public  surveys  by  a  line  con- 
ned i  UK  a  corner  of  the  claim  with  the  nearest  public  corner  of  the  United  States 
surveys,  unless  such  claim  be  on  unsurveyed  lands  at  a  remote  distance  from 

SUCh  pulilie  corner;  in  which  hitter  case  the  reference  by  course  and  distance  to 
permanent  Objects  in  the  neighborhood  will  he  a  sufficient  designation  by  which 
to  fix  the  locus  until  the  public  surveys  shall  have  been  closed  upon  its  boun- 
daries. 


INSTRUCTIONS.  411 


ADVERSE     CLAIMS. 

44.  Section  2326  provides  for  adverse  claims;  fixes  the  time  -within  which  they 
shall  be  filed  to  have  legal  effect,  and  prescribes  the  manner  of  their  adjustment. 

45.  Said  section  requires  that  the  adverse  claim  shall  be  filed  during  the  period 
of  publication  of  notice;  that  it  must  be  on  the  oath  of  the  adverse  claimant; 
and  that  it  must  show  the  "  nature,"  the  "  boundaries,"  and  the  "  extent "  of  the 
adverse  claim. 

40.  In  order  that  this  section  of  law  may  be  properly  carried  into  effect,  the 
following  is  communicated  for  the  information  of  all  concerned : 

47.  An  adverse  mining  claim  must  be  filed  with  the  register  of  the  same  land 
office  with  whom  the  application  for  patent  was  filed,  or  in  his  absence  with  the 
receiver,  and  within  the  sixty  days'  period  of  newspaper  publication  or  notice. 

48.  The  adverse  notice  must  be  duly  sworn  to  by  the  person  or  persons  mak- 
ing the  same  before  an  officer  authorized  to  administer  oaths  within  the  land 
district,  or  before  the  register  or  receiver ;  it  will  fully  set  forth  the  nature  and 
extent  of  the  interference  or  conflict;  whether  the  adverse  party  claims  as  a 
purchaser  for  valuable  consideration,  or  as  a  locator;  if  the  former,  a  certified 
copy  of  the  original  location,  the  original  conveyance,  a  duly  certified  copy 
thereof,  or  an  abstract  of  title  from  the  office  of  the  proper  recorder  should  be 
furnished ;  or  if  the  transaction  was  a  mere  verbal  one,  he  will  narrate  the  cir- 
cumstances attending  the  purchase,  the  date  thereof,  and  the  amount  paid, 
which  facts  should  be  supported  by  the  affidavit  of  one  or  more  witnesses,  if  any 
were  present  at  the  time ;  and  if  he  claims  as  a  locator,  he  must  file  a  duly  cer- 
tified copy  of  the  location  from  the  office  of  the  proper  recorder. 

49.  In  order  that  the  "  boundaries"  and  " extent "  of  the  claim  may  be  shown, 
it  will  be  incumbent  upon  the  adverse  claimant  to  file  a  plat  showing  his  claim, 
its  relative  situation  or  position  with  the  one  against  which  he  claims,  and  the 
extent  of  the  conflict.  This  plat  must  be  made  from  an  actual  survey  by  a 
United  States  deputy  surveyor,  who  will  officially  certify  thereon  to  its  correct- 
ness ;  and  in  addition,  there  must  be  attached  to  such  plat  of  survey  a  certifi- 
cate or  sworn  statement  by  the  surveyor  as  to  the  approximate  value  of  the  la- 
bor performed  or  improvements  made  upon  the  claim  by  the  adverse  party  or 
his  predecessors  in  interest,  and  the  plat  must  indicate  the  position  of  any  shafts, 
tunnels,  or  other  improvements,  if  any  such  exist,  upon  the  claim  of  the  party 
opposing  the  application,  and  by  which  party  said  improvements  were  made. 

50.  Upon  the  foregoing  being-filed  within  the  sixty  days  as  aforesaid,  the  reg- 
ister, or  in  his  absence  the  receiver,  will  give  notice  in  writing  to  both  parties  to 
the  contest  that  such  adverse  claim  has  been  filed,  informing  them  that  the 
party  who  filed  the  adverse  claim  will  be  required  within  thirty  days  from  the 
date  of  such  filing  to  commence  proceedings  in  a  Court  of  competent  jurisdic- 
tion to  determine  the  question  of  right  of  possession,  and  to  prosecute  the  same 
with  reasonable  diligence  to  final  judgment,  and  that  should  such  adverse 
claimant  fail  to  do  so,  his  adverse  claim  will  be  considered  waived,  and  the  ap- 
plication for  patent  be  allowed  to  proceed  upon  its  merits. 

51.  When  an  adverse  claim  is  filed  as  aforesaid,  the  register  or  receiver  will 
indorse  upon  the  same  the  precise  date  of  filing,  and  preserve  a  record  of  the 
date  of  notifications  issued  thereon ;  and  thereafter  all  proceedings  on  the  ap- 
plication for  patent  will  be  suspended,  with  the  exception  of  the  completion  of 
the  publication  and  posting  of  notices  and  plat,  and  the  filing  of  the  necessary 
proof  thereof,  until  the  controversy  shall  have  been  adjudicated  in  Court,  or 
the  adverse  claim  waived  or  withdrawn. 

52.  The  proceedings  after  rendition  of  judgment  by  the  Court  in  such  case  are 


412  INSTRUCTIONS. 

so  clearly  defined  by  the  act  itself  as  to  render  it  unnecessary  to  enlarge  thereon 
in  this  place. 

PLACER    CLAIMS. 

53.  The  proceedings  to  obtain  patents  for  claims  usually  called  placers, 
including  all  forms  of  deposit,  are  similar  to  the  proceedings  prescribed  for 
obtaining  patents  for  vein  or  lode  claims;  but  where  said  placer-claim  shall 
be  upon  surveyed  lands,  and  conform  to  legal  subdivisions,  no  further  survey 
or  plat  will  be  required,  and  all  placer-mining  claims  located  after  May  10th, 
1872,  shall  conform  as  nearly  as  practicable  with  the  United  States  system  of 
public-land  surveys  and  the  rectangular  subdivisions  of  such  surveys,  and  no 
such  location  shall  include  more  than  twenty  acres  for  each  individual  claimant ; 
but  where  placer-claims  cannot  be  conformed  to  legal  subdivisions,  survey  and 
plat  shall  be  made  as  on  unsurveyed  lands.  But  where  such  claims  are  located 
previous  to  the  public  surveys,  and  do  not  conform  to  legal  subdivisions,  sur- 
vey, plat,  and  entry  thereof  may  be  made  according  to  the  boundaries  fixed  by 
the  local  laws. 

54.  The  proceedings  for  obtaining  patents  for  veins  or  lodes  having  already 
been  fully  given,  it  will  not  be  necessary  to  repeat  them  here ;  it  being  thought 
that  careful  attention  thereto  by  applicants  and  the  local  officers  will  en- 
able them  to  act  understandingly  in  the  matter,  and  make  such  slight  modifi- 
cations in  the  notice,  or  otherwise,  as  may  be  necessary  in  view  of  the  different 
nature  of  the  two  classes  of  claims,  placer-elairns  being  fixed,  however,  at  two 
dollars  and  fifty  cents  per  acre,  or  fractional  part  of  an  acre. 

55.  By  Section  2330,  authority  is  given  for  the  subdivision  of  forty-acre  legal 
subdivisions  into  ten-acre  lots,  which  is  intended  for  the  greater  convenience  of 
miners  in  segregating  their  claims  both  from  one  another  and  from  intervening 
agricultural  lands. 

5G.  It  is  held,  therefore,  that  under  a  proper  construction  of  the  law  these 
ten-acre  lots  in  mining  districts  should  be  considered  and  dealt  with,  to  all 
intents  and  purposes,  as  legal  subdivisions,  and  that  an  applicant  having  a  legal 
claim  which  conforms  to  one  or  more  of  these  ten-acre  lots,  either  adjoining  or 
cornering,  may  make  entry  thereof,  after  the  usual  proceedings,  without  further 
survey  or  plat. 

57.  In  cases  of  this  kind,  however,  the  notice  given  of  the  application  must 
be  very  specific  and  accurate  in  description,  and  as  the  forty-acre  tracts  may  be 
subdivided  into  ten-acre  lots,  either  in  the  form  of  squares  of  ten-by-ten  chains 
or  of  parallelograms  five-by-twenty  chains,  so  long  as  the  lines  are  parallel  and 
at  right  angles  with  the  lines  of  the  public  surveys,  it  will  be  necessary  that  the 
notice  and  application  state  specifically  what  ten-acre  lots  are  sought  to  bo  pat- 
ented, in  addition  to  the  other  data  required  in  the  notice. 

58.  Where  the  ten-acre  subdivision  is  in  the  form  of  a  square,  it  may  be  de- 
scribed, for  instance,  as  the  "S.  E.  {  of  the  S.  "W.  i  of  N.  TV.  \,"  or,  if  in  the 
form  of  a  parallelogram  as  aforesaid,  it  may  be  described  as  the  "  TV.  I  of 
the  W.  J  of  tho  S.  W.  i  of  the  N.  W.  i,  (or  the  N.  J  of  the  S.  \  of  the  N.  E.  |  of 

the  8.  10.  .', )  of  section ,  township ,  range ,"  as  the  case  may  be; 

but,  in  addition  to  this  description  of  the  land,  the  notice  must  give  all  the 
Other  data  that  are  required  in  a  mineral  application,  by  which  parties  may  bo 
put  en  Inquiry  as  to  the  premises  sought  to  be  patented.  The  proof  submitted 
with  applications  for  claims  of  this  kind  must  show  clearly  tho  character  and 
the  extent  <>f  Hie  improvements  upon  the  premises. 

BO.  The  proceedings  necessary  for  the  adjustment  of  rights  where  a  known 

Vein  or  lode  1 i  embraced  by  a  placer  claim  are  so  clearly  defined  by  Section  2333 
as  to  render  any  particular  instructions  upon  that  point  at  this  time  unneces- 
sary. 


INSTRUCTIONS.  413 

60.  When  an  adverse  claim  is  filed  to  a  placer  application,  the  proceedings 
are  the  same  as  in  the  case  of  vein  or  lode  claims  already  described. 

QUANTITY  OF  TLACEK  GROUND    SUBJECT   TO   LOCATION. 

01.  By  Section  2330  it  is  declared  that  no  location  of  a  placer  claim,  made  after 
July  9th,  1870,  shall  exceed  one  hundred  and  sixty  acres  for  any  one  person  or 
association  of  persons,  which  location  shall  conform  to  the  United  States  sur- 
veys. 

02.  Section  2331  provides  that  all  placer  mining  claims,  located  after  May  10th, 
1872,  shall  conform  as  nearly  as  practicable  with  the  United  States  system  of 
public  surveys,  and  the  subdivisions  of  such  surveys,  and  no  such  location  shall 
include  more  than  twenty  acres  for  each  individual  claimant. 

03.  The  foregoing  provisions  of  law  are  construed  to  mean  that  after  the  9th 
day  of  July,  1870,  no  location  of  a  placer  claim  can  be  made  to  exceed  one 
hundred  and  sixty  acres,  whatever  may  be  the  number  of  locators  associated 
together,  or  whatever  the  local  regulations  of  the  district  may  allow;  and  that 
from  and  after  May  10th,  1872,  no  location  made  by  an  individual  can  exceed 
twenty  acres,  and  no  location  made  by  an  association  of  individuals  can  exceed 
one  hundred  and  sixty  acres,  which  location  of  one  hundred  and  sixty  acres 
cannot  be  made  by  a  less  number  than  eight  bona  ride  locators,  but  that  whether 
as  much  as  twenty  acres  can  be  located  by  an  individual,  or  one  hundred  and 
sixty  acres  by  an  association,  depends  entirely  upon  the  mining  regulations  in. 
force  in  the  respective  districts  at  the  date  of  the  location ;  it  being  held  that  such 
mining  regulations  are  in  no  way  enlarged  by  the  statutes,  but  remain  intact 
and  in  full  force  with  regard  to  the  size  of  locations,  in  so  far  as  they  do  not 
permit  locations  in  excess  of  the  limits  fixed  by  Congress,  but  that  where  such 
regulations  permit  locations  in  excess  of  the  maximums  fixed  by  Congress  as 
aforesaid,  they  are  restricted  accordingly. 

64.  The  regulations  hereinbefore  given  as  to  the  manner  of  marking  locations 
>  on  the  ground,  and  placing  the  same  on  record,  must  be  observed  in  the  case  of 
placer  locations,  so  far  as  the  same  are  applicable ;  the  law  requiring,  however, 
that  where  placer  claims  are  upon  surveyed  public  lands,  the  locations  must 
hereafter  be  made  to  conform  to  the  legal  subdivisions  thereof  (as  near  as  prac- 
ticable). 

05.  With  regard  to  the  proofs  necessary  to  establish  the  possessory  right  to  a 
placer  claim,  Section  2332  provides  that  "where  such  person  or  association, 
they  and  their  grantors,  have  held  and  worked  their  claims  for  a  period  equal 
to  the  time  prescribed  by  the  statute  of  limitations  for  mining  claims  of  the 
State  or  Territory  where  the  same  may  be  situated,  evidence  of  such  possession 
and  working  of  the  claims  for  such  period  shall  be  sufficient  to  establish  a  right 
to  a  patent  thereto  under  this  chapter,  in  the  absence  of  any  adverse  claim." 

66.  This  provision  of  law  will  greatly  lessen  the  burden  of  proof,  more  espec- 
ially in  the  case  of  old  claims  located  many  years  since,  the  records  of  which, 
in  many  cases,  have  been  destroyed  by  fire,  or  lost  in  other  ways  during  the 
lapse  of  time,  but  concerning  the  possessory  right  to  which  all  controversy  or 
litigation  has  long  been  settled. 

67.  When  an  applicant  desires  to  make  his  proof  of  possessory  right  in  ac- 
cordance with  this  provision  of  law,  you  will  not  require  him  to  produce  evi- 
dence of  location,  copies  of  .conveyances,  or  abstracts  of  title,  as  in  other  cases, 
but  will  require  him  to  furnish  a  duly  certified  copy  of  the  statute  of  limitations 
of  mining  claims  for  the  State  or  Territory,  together  with  his  sworn  statement 
giving  a  clear  and  succinct  narration  of  the  facts  as  to  the  origin  of  his  title, 
and  likewise  as  to  the  continuation  of  his  possession  of  the  mining  ground  cov- 
ered by  his  application;  the  area  thereof,  the  nature  and  extent  of  the  min- 


414  INSTRUCTIONS. 

ing  that  has  been  done  thereon;  whether  there  has  been  any  opposition  to  his 
possession  or  litigation  with  regard  to  his  claim;  and  if  so,  when  the  same 
ceased ;  whether  such  cessation  was  caused  by  compromise  or  by  judicial  decree, 
and  any  additional  facts  within  the  claimant's  knowledge  having  direct  bearing 
upon  his  possession  and  bona  fides  which  he  may  desire  to  submit  in  support  of 
his  claim. 

68.  There  should  likewise  be  filed  a  certificate,  under  seal  of  the  Court  having 
jurisdiction  of  mining  cases  within  the  judicial  district  embracing  the  claim, 
that  no  suit  or  action  of  any  character  whatever  involving  the  right  of  posses- 
sion to  any  portion  of  the  claim  applied  for  is  pending,  and  that  there  has  been 
no  litigation  before  said  Court  affecting  the  title  to  said  claim  or  any  part  thereof 
for  a  period  equal  to  the  time  fixed  by  the  Statute  of  Limitations  for  mining 
claims  in  the  State  or  Territory  as  aforesaid,  other  than  that  which  has  been 
finally  decided  in  favor  of  the  claimant. 

69.  The  claimant  should  support  his  narrative  of  facts  relative  to  his  posses- 
sion, occupancy,  and  improvements  by  corroborative  testimony  of  any  disin- 
terested person  or  persons  of  credibility  who  may  be  cognizant  of  the  facts  in 
the  case,  and  are  capable  of  testifying  understandingly  in  the  premises. 

70.  It  will  be  to  the  advantage  of  claimants  to  make  their  proofs  as  full  and 
complete  as  practicable. 

MILL,  SITES. 

71.  Section  2337  provides  that,  "where  non-mineral  land  not  contiguous  to 
the  vein  or  lode  is  used  or  occupied  by  the  proprietor  of  such  vein  or  lode 
for  mining  or  milling  purposes,  such  non-adjacent  surface  ground  may  be 
embraced  and  included  in  an  application  for  a  patent  for  such  vein  or  lode,  and 
the  same  may  be  patented  therewith,  subject  to  the  same  preliminary  require- 
ments as  to  survey  and  notice  as  are  applicable  to  veins  or  lodes :  but  no  location 
hereafter  made  of  such  non-adjacent  land  shall  exceed  five  acres,  and  payment 
for  the  same  must  be  made  at  the  same  rate  as  fixed  by  this  chapter  for  the 
superficies  of  the  lode.  The  owner  of  a  quartz  mill  or  reduction  works,  not 
owning  a  mine  in  connection  therewith,  may  also  receive  a  patent  for  a  mill 
site  as  provided  in  this  section." 

72.  To  avail  themselves  of  this  provision  of  law,  parties  holding  the  possessory 
right  to  a  vein  or  lode,  and  to  a  piece  of  non-mineral  land  not  contiguous 
thereto,  for  mining  or  milling  purposes,  not  exceeding  the  quantity  allowed  for 
such  purpose  by  the  local  rules,  regulations,  or  customs,  the  proprietors  of  such 
vein  or  lode  may  file  in  the  proper  land  office  their  application  for  a  patent, 
under  oath,  in  manner  already  set  forth  herein,  which  application,  together  with 
the  plat  and  field-notes,  may  include,  embrace,  and  describe,  in  addition  to  the 
vein  or  lode,  such  non-contiguous  mill  site,  and  after  due  proceedings  as  to 
notice,  etc.,  a  patent  will  be  issued  conveying  the  same  as  one  claim. 

73.  In  making  the  survey  in  a  case  of  this  kind,  the  lode  claim  should  be 
descried  in  the  plat  and  field-notes  as  "Lot  No.  37,  A,"  and  the  mill  site  as 
"  Lot  Nb.  37,  15,"  or  whatever  may  be  its  appropriate  numerical  designation;  the 
course  and  distance  from  a  corner  of  the  mill  site  to  a  corner  of  the  lode  claim 
to  be  invariably  given  in  such  plat  and  field-notes,  and  a  copy  of  the  plat  and 
notice  <'f  application  for  patent  must  be  conspicuously  posted  upon  the  mill  site 
as  will  as  upon  the  vein  or  lode,  for  the  statutory  period  of  sixty  days.  In 
making  the  entry  no  separate  receipt  or  certificate  need  be  issued  for  the  mill 
sit.-.  but  tin'  whole  an:i  of  both  lode  and  mill  site;  will  bo  embraced  in  one  entry, 
the  price  being  live  dollars  for  each  aero  and  fractional  part  of  an  acre  em- 
braced by  such  lode  and  mill  site  claim. 

74.  In  case  He-  owner  of  a  quartz-mill  or  reduction-works  is  not  the  owner  or 


INSTRUCTIONS.  415 

claimant  of  a  vein  or  lode,  the  law  permits  him  to  make  application  therefor  in 
the  same  manner  prescribed  herein  for  mining  claims,  and  after  due  notice  and 
proceedings,  in  the  absence  of  a  valid  adverse  riling,  to  enter  and  receive  a 
patent  for  his  mill  site  at  said  price  per  acre. 

75.  In  every  case  there  must  be  satisfactory  proof  that  the  land  claimed  as  a 
mill  site  is  not  mineral  in  character,  which  proof  may,  where  the  matter  is  un- 
questioned, consist  of  the  sworn  statement  of  the  claimant,  supported  by  that 
of  one  or  more  disinterested  persons  capable  from  acquaintance  with  the  land 
to  testify  understanding!  y. 

76.  The  law  expressly  limits  mill-site  locations  made  from  and  after  its  pas- 
sage to  five  acres,  but  whether  so  much  as  that  can  be  located  depends  upon  the 
local  customs,  rules,  or  regulations. 

77.  The  registers  and  receivers  will  preserve  an  unbroken  consecutive  series 
of  numbers  for  all  mineral  entries. 

PROOF   OF   CITIZENSHIP  OF   MINING   CLAIMANTS. 

78.  The  proof  necessary  to  establish  the  citizenship  of  applicants  for  mining 
patents  must  be  made  in  the  following  manner:  In  case  of  an  incorporated  com- 
pany, a  certified  copy  of  their  charter  or  certificate  of  incorporation  must  be  filed. 
In  case  of  an  association  of  persons  unincorporated,  the  affidavit  of  their  duly 
authorized  agent,  made  upon  his  own  knowledge,  or  upon  information  and  be- 
lief, setting  forth  the  residence  of  each  person  forming  such  association,  must  be 
submitted.  This  affidavit  must  be  accompanied  by  a  power  of  attorney  from 
the  parties  forming  such  association,  authorizing  the  person  who  makes  the  affi- 
davit of  citizenship  to  act  for  them  in  the  matter  of  their  application  for  patent. 

79.  In  case  of  an  individual  or  an  association  of  individuals  who  do  not  ap- 
pear by  their  duly  authorized  agent,  you  will  require  the  affidavit  of  each 
applicant,  showing  whether  he  is  a  native  or  naturalized  citizen,  when  and  where 
born,  and  his  residence. 

80.  In  case  an  applicant  has  declared  his  intention  to  become  a  citizen,  or  has 
been  naturalized,  his  affidavit  must  show  the  date,  place,  and  the  Court  before 
which  he  declared  his  intention,  or  from  which  his  certificate  of  citizenship 
issued,  and  present  residence. 

81.  The  affidavit  of  citizenship  may  be  taken  before  the  register  and  receiver, 
or  any  other  officer  authorized  to  administer  oaths  within  the  district. 

APPOINTMENT  OF  DEPUTY   SURVEYORS   OF  MINING  CLAIMS — CHARGES   FOR  SURVEYS 
AND   PUBLICATIONS — FEES  OF   REGISTERS   AND  RECEIVERS,  ETC. 

82.  Section  2334  provides  for  the  appointment  of  surveyors  of  mineral  claims, 
authorizes  the  Commissioner  of  the  General  Land  Office  to  establish  the  rates 
to  be  charged  for  surveys  and  for  newspaper  publications,  prescribes  the  fees 
allowed  to  the  local  officers  for  receiving  and  acting  upon  applications  for  min- 
ing patents  and  for  adverse  claims  thereto,  etc. 

83.  The  Surveyors-General  of  the  several  districts  will,  in  pursuance  of  said 
law,  appoint  in  each  land  district  as  many  competent  deputies  for  the  survey  of 
mining  claims  as  may  seek  such  appointment ;  it  being  distinctly  understood 
that  all  expenses  of  these  notices  and  surveys  are  to  be  borne  by  the  mining 
claimants  and  not  by  the  United  States;  the  system  of  making  deposits  for 
mineral  surveys,  as  required  by  previous  instructions,  being  hereby  revoked  as 
regards  field-ivork;  the  claimant  having  the  option  of  employing  any  deputy 
surveyor  within  such  district  to  do  his  work  in  the  field. 

81.  With  regard  to  the  platting  of  the  claim  and  other  office  work  in  the  Sur- 
veyor-General's office,  that  officer  will  make  an  estimate  of  the  cost  thereof. 


416  INSTRUCTIONS. 

which  amount  the  claimant  will  deposit  with  any  assistant  United  States  treas- 
urer, or  designated  depository,  in  favor  of  the  United  States  Treasurer,  to  he 
passed  to  the  credit  of  the  fund  created  hy  "individual  depositors  for  surveys 
of  the  public  lands,"  and  file  with  the  Surveyor-General  duplicate  certificates 
of  such  deposit  in  the  usual  manner. 

85.  The  Surveyors-General  will  endeavor  to  appoint  mineral  deputy  surveyors 
so  that  one  or  more  may  he  located  in  each  mining  district,  for  the  greater  con- 
venience of  miners. 

86.  The  usual  oaths  will  be  required  of  these  deputies  and  their  assistants  as 
to  the  correctness  of  each  survey  executed  by  them. 

87.  The  law  requires  that  each  applicant  shall  file  with  the  register  and  receiver 
a  sworn  statement  of  all  charges  and  fees  paid  by  him  for  publication  of  notice 
and  for  survey ;  together  with  all  fees  and  money  paid  the  register  and  receiver, 
which  sworn  statement  is  required  to  be  transmitted  to  this  Office,  for  the  infor- 
mation of  the  Commissioner. 

88.  Should  it  appear  that  excessive  or  exorbitant  charges  have  been  made  by 
any  surveyor  or  any  publisher,  prompt  action  will  be  taken  with  the  view  of 
correcting  the  abuse. 

89.  The  fees  payable  to  the  register  and  receiver  for  filing  and  acting  upon 
applications  for  mineral  land  patents  are  five  dollars  to  each  officer,  to  be  paid 
by  the  applicant  for  patent  at  the  time  of  riling,  and  the  like  sum  of  five  dollars 
is  payable  to  each  officer  by  an  adverse  claimant  at  the  time  of  filing  his  adverse 
claim. 

90.  All  fees  or  charges  under  this  law  may  be  paid  in  United  States  currency. 

91.  The  register  and  receiver  will,  at  the  close  of  each  month,  forward  to  this 
office  an  abstract  of  mining  applications  filed,  and  a  register  of  receipts,  accom- 
panied with  an  abstract  of  mineral  lands  sold,  and  an  abstract  of  adverse 
claims  filed. 

92.  The  fees  and  purchase-money  received  by  registers  and  receivers  must  be 
placed  to  the  credit  of  the  United  States  in  the  receiver's  monthly  and  quarterly 
account,  charging  up  in  the  disbursing  account  the  sums  to  which  the  register 
and  receiver  may  be  respectively  entitled  as  fees  and  commissions,  with  limita- 
tions in  regard  to  the  legal  maximum. 

IIIAKINCS    TO    ESTABLISH    THE    CHARACTER    OF    I,ANDS. 

93.  Sec.  2335  provides  that  all  affidavits  required  under  this  chapter  may  be 
verified  before  any  officer  authorized  to  administer  oaths  within  the  land  district 
where  the  claims  may  be  situated,  and  all  testimony  and  proofs  may  be  taken 
before  any  such  officer,  and  when  duly  certified  by  the  officer  taking  tin- same 
shall  have  the  same  force  and  effect  as  if  taken  before  the  register  and  receiver 

of  the  Land  Office. 

94.  [n  cases  of  contest  as  to  the  mineral  or  agricultural  character  of  Land,  the 
testimony  and  proofs  may  be  taken,  as  hereinbefore  provided,  on  personal  notice 
of  at  least  ten  days  to  the  opposing  party,  or  if  such  parly  cannot  be  found,  then 
by  publication  of  notice  Eor  at  least  once  a  week  for  thirty  days,  in  a  newspaper 
to  be  designated  by  the  register  of  the  land  office  as  published  nearest  to  the 
location  of  such  land,  and  the  register  shall  require  proof  that  such  notice  has 
been  given. 

95.  Testimony  Eor  the  purpose  of  disproving  the  mineral  character  of  the 
lands  may  be  taken  before  any  officer  authorized  to  administer  oaths  within  the 

land  district,   ami    where  1  lie  residence  of    the    parties  who   claim  the  land   to 

be  mineral  is  known,  such  evidence  may  betaken  without  publication,  ten  days 
after  the  mineral  claimants  or  affiants  shall  have  been  personally  notified  of  the 

time  and  place  "I   such  bearing;  bul   in  cases  where  such  affiants  or  claimants 


INSTRUCTIONS.  417 

cannot  be  served  with  personal  notice,  or  where  the  land  applied  for  is  returned 
as  mineral  upon  the  township  plat,  or  where  the  same  is  now  or  may  hereafter 
be  suspended  for  non-mineral  proof,  by  order  of  this  Office,  then  the  party  who 
claims  the  right  to  enter  the  land  as  agricultural  will  be  required,  at  his  own 
expense,  to  publish  a  notice  once  each  week  for  five  consecutive  weeks  in  the 
newspaper  of  largest  circulation  published  in  the  county  within  which  said  land 
is  situated,  or  if  no  newspaper  is  published  within  such  county,  then  in  a  news- 
paper published  in  an  adjoining  county;  the  newspaper  in  either  case  to  be 
designated  by  the  register;  which  notice  must  be  clear  and  specific,  giving  the 
name  and  address  of  the  claimant,  the  designation  of  the  subdivision  embraced 
by  his  filing,  the  names  of  any  miners  or  mining  companies  whose  claims  or 
improvements  are  upon  the  land  or  in  the  immediate  vicinity  thereof,  the  names 
of  the  parties  who  filed  the  affidavits  that  the  land  is  mineral,  and  finally  the 
notice  should  name  a  day,  which  shall  not  be  less  than  thirty  days  from  the 
date  of  the  first  insertion  of  said  notice  in  such  newspaper,  upon  which  testi- 
mony will  be  taken  to  determine  the  facts  as  to  the  mineral  or  non-mineral 
character  of  the  land.  The  notice  must  also  state  before  what  officer  such  hear- 
ing will  be  held,  and  the  place  of  such  hearing.  A  copy  of  this  notice  must  be 
posted  in  a  conspicuous  place,  upon  each  forty-acre  subdivision  claimed,  during 
the  publication  of  the  notice,  proof  of  which  must  be  made  under  oath  by  at 
least  two  persons,  who  will  state  when  the  notice  was  posted  and  where  posted. 

96.  At  the  hearing  there  must  be  filed  the  affidavit  of  the  publisher  of  the 
paper  that  the  said  notice  was  published  for  the  required  time,  stating  when 
and  for  how  long  such  publication  was  made,  a  printed  copy  thereof  to  be 
attached  and  made  a  part  of  the  affidavit.  In  every  case  where  practicable,  in 
addition  to  the  foregoing,  xnrsonal  notice  must  be  served  upon  the  mineral  affi- 
ants, and  upon  any  parties  who  may  be  mining  upon  or  claiming  the  land. 

97.  At  the  hearing  the  claimants  and  witnesses  will  be  thoroughly  examined 
with  regard  to  the  character  of  the  land ;  whether  the  same  has  been  thoroughly 
prospected;  whether  or  not  there  exists  within  the  tract  or  tracts  claimed  any 
lode  or  vein  Of  quartz  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar,  lead, 
tin,  or  copper,  or  other  valuable  deposit,  which  has  ever  been  claimed,  located,  re- 
corded, or  worked;  whether  such  work  is  entirely  abandoned,  or  whether 
occasionally  resumed ;  if  such  lode  does  exist,  by  whom  claimed,  under  what 
designation,  and  in  which  subdivision  of  the  land  it  lies ;  whether  any  placer  mine 
or  mines  exist  upon  the  land ;  if  so,  what  is  the  character  thereof — whether  of 
the  shallow  surface  description,  or  of  the  deep  cement,  blue  lead,  or  gravel  de- 
posits ;  to  what  extent  mining  is  carried  on  when  water  can  be  obtained,  and 
what  the  facilities  are  for  obtaining  water  for  mining  purposes ;  upon  what 
particular  ten-acre  subdivisions  mining  has  been  done,  and  at  what  time  the 
land  was  abandoned  for  mining  purjioses,  if  abandoned  at  all. 

98.  The  testimony  should  also  show  the  agricultural  capacities  of  the  land, 
what  kind  of  crops  are  raised  thereon,  and  the  value  thereof ;  the  number  of 
acres  actually  cultivated  for  crops  of  cereals  or  vegetables,  and  within  which 
particular  ten-acre  subdivisions  such  crops  are  raised;  also,  which  of  these  sub- 
divisions embrace  his  improvements,  giving  in  detail  the  extent  and  value  of 
his  improvements,  such  as  house,  barn,  vineyard,  orchard,  fencing,  etc. 

99.  It  is  thought  that  bona  fide  setters  upon  lands  really  agricultural  will  be 
able  to  show,  by  a  clear,  logical,  and  succint  chain  of  evidence,  that  their  claims 
are  founded  upon  law  and  justice;  while  parties  who  have  made  little  or  no 
permanent  agricultural  improvements,  and  who  only  seek  title  for  speculative 
purposes,  on  account  of  the  mineral  deposits  known  to  themselves  to  be  con- 
tained in  the  land,  will  be  defeated  in  their  intentions. 

100.  The  testimony  should  be  as  full  and  complete  as  possible;  and  in  addition 

W.  C— 27. 


418  INSTRUCTIONS. 

to  the  leading  points  indicated  above,  everything  of  importance  bearing  upon 
the  question  of  the  character  of  the  land  should  be  elicited  at  the  hearing. 

101.  Where  the  testimony  is  taken  before  an  officer  who  does  not  use  a  seal, 
other  than  the  register  and  receiver,  the  official  character  of  such  officer  must 
bo  attested  by  a  clerk  of  a  Court  of  Record,  and  the  testimony  transmitted  to 
the  register  and  receiver,  who  will  thereujwn  examine  and  forward  the  same  to 
this  Office,  with  their  joint  opinion  as  to  the  character  of  the  land  as  shown  by 
the  testimony. 

102.  When  the  case  comes  before  this  Office  such  an  award  of  the  land  will  be 
made  as  the  law  and  the  facts  may  justify;  and  in  cases  where  a  survey  is 
necessary  to  set  apart  the  mineral  from  the  agricultural  land  in  any  forty-acre 
tract,  the  necessary  instructions  will  be  issued  to  enable  the  agricultural  claim- 
ant, at  his  own  expense,  to  have  the  work  done,  at  his  option,  either  by  United 
States  deputy,  county,  or  other  local  surveyor;  the  survey  in  such  case  may  be 
executed  in  such  manner  as  will  segregate  the  portion  of  land  actually  contain- 
ing the  mine,  and  used  as  surface  ground  for  the  convenient  working  thereof, 
from  the  remainder  of  the  tract,  which  remainder  will  be  patented  to  the  agri- 
culturist to  whom  the  same  may  have  been  awarded,  subject,  however,  to  the 
condition  that  the  land  may  be  entered  upon  by  the  proprietor  of  any  vein  or 
lode  for  which  a  patent  has  been  issued  by  the  United  States  for  the  purpose  of 
extracting  and  removing  the  ore  from  the  same,  where  found  to  penetrate  or  in- 
tersect the  land  so  patented  as  agricultural,  as  stipulated  by  the  mining  act. 

103.  Such  survey  when  executed  must  be  properly  sworn  to  by  the  surveyor, 
either  before  a  notary  public,  officer  of  a  Court  of  Record,  or  before  the  register 
or  receiver,  the  deponent's  character  and  credibility  to  be  properly  certified  to 
by  the  officer  administering  the  oath. 

104.  Upon  the  filing  of  the  plat  and  field-notes  of  such  survey,  duly  sworn  to 
as  aforesaid,  you  will  transmit  the  same  to  the  Surveyor-General  for  his  verifi- 
cation and  approval ;  who,  if  he  finds  the  work  correctly  performed,  will  prop- 
erly mark  out  the  same  upon  the  original  townshij)  plat  in  his  office^and  furnish 
authenticated  copies  of  such  plat  and  description  both  to  the  proper  local  land 
office  and  to  this  Office,  to  be  affixed  to  the  duplicate  and  triplicate  township 
plats  respectively. 

105.  In  cases  where  a  portion  of  a  forty-acre  tract  is  awarded  to  an  agricul- 
tural claimant,  and  he  causes  the  segregation  thereof  from  the  mineral  portion, 
as  aforesaid,  such  agricultural  portion  will  not  be  given  a  numerical  designation 
as  in  the  case  of  surveyed  mineral  claims,  but  will  simply  be  described  as  tho 

"Fractional quarter  of  the quarter  of  section ,  in  township 

,  of  range ,  meridian,  containing acres,  the  same  being  exclu- 
sive of  the  land  adjudged  to  be  mineral  in  said  forty-acre  tract." 

100.  The  surveyor  must  correctly  compute  the  area  of  such  agricultural  por- 
tion, which  computation  will  be  verified  by  the  Surveyor-General. 

107.  After  tho  authenticated  plat  and  field-notes  of  tho  survey  have  been 
received  from  the  Surveyor-General,  this  Office  will  issue  tho  necessary  order  for 
the  entry  of  the  land,  and  in  issuing  tho  receiver's  receipt  and  register's  patent 
iirt  [ficate  you  will  invariably  be  governed  by  the  description  of  the  land  given 
in  tint  order  from  this  Office. 

108.  'I'Ik:  fees  for  taking  test  imony  and  reducingthe  same  to  writing,  in  these 
.  will  have  to  bo  defrayed  by  the  parties  in  interest.     Where  such  testi- 
mony is  taken  before  any  other  officer  than  tho  register  and  receiver,  tho  regis- 
ter and  receiver  will  be  entitled  to  no  fees. 

109.  If,  upon  a  review  of  the  test  imony  at  this  Office,  a  ten-acro  tract  should 
be  found  i"  i»  properly  mineral  in  character,  that  fact  will  bo  no  bar  to  the 
execution  <»f  the  Bottler's  Legal  right  to  the  remaining  non-mineral  portiou  of  his 
claim,  if  Contiguous. 


INSTRUCTIONS.  419 

110.  No  fear  need  be  entertained  that  miners  will  be  permitted  to  make  entries 
©f  tracts  ostensibly  as  mining  claims,  which  are  not  mineral,  simply  for  the 
purpose  of  obtaining  possession  and  defrauding  settlers  out  of  their  valuable 
agricultural  improvements;  it  being  almost  an  impossibility  for  such  a  fraud  to 
be  consummated  under  the  laws  and  regulations  applicable  to  obtaining  patents 
for  mining  claims. 

111.  The  fact  that  a  certain  tract  of  land  is  decided  upon  testimony  to  be 
mineral  in  character,  is  by  no  means  equivalent  to  an  award  of  the  land  to  a 
miner.  A  miner  is  compelled  by  law  to  give  sixty  days'  publication  of  notice, 
and  posting  of  diagrams  and  notices,  as  a  preliminary  step;  and  then,  before  he 
can  enter  the  land,  he  must  show  that  the  land  yields  mineral ;  that  he  is  en- 
titled to  the  possessory  right  thereto  in  virtue  of  compliance  with  local  customs 
or  rules  of  miners,  or  by  virtue  of  the  Statute  of  Limitations ;  that  he  or  his 
grantors  have  expended,  in  actual  labor  and  improvements,  an  amount  of  not 
less  than  five  hundred  dollars  thereon,  and  that  the  claim  is  one  in  regard  to 
which  there  is  no  controversy  or  opposing  -claim.  After  all  these  proofs  are 
met,  he  is  entitled  to  have  a  survey  made  at  his  own  cost,  where  a  survey  is  re- 
quired, after  which  he  can  enter  and  pay  for  the  land  embraced  by  his  claim. 

J.  A.  WILLIAMSON, 

Commissioner. 


[Note. — The  following  Opinion  was  not  received  in  time  to  incorporate  in  the 
body  of  the  work.  See  reference  to  it,  and  decision  of  the  Supreme  Court  of 
Nevada  in  the  same  case,  which  is  affirmed,on  pages  67-74,  Sec.  35.] 

Supreme  Court  of  the  United  States,  )  ^     ft7Q 
October  Term,  187(3.  )  rs0,  8'°- 


Solomon  Heydenfeldt,  Plaintiff  in  Error,  \  In  emjr  tQ  the  Supreme  Court 

The  Daney  Gold  and  Silver  Mining  Company. )     of  the  State  of  Nevada. 


Mr.  Justice  Davis  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  ejectment  to  recover  a  specific  portion  of  the  west  half  of 
the  southwest  quarter  of  section  sixteen,  township  sixteen,  range  twenty-one 
east,  in  Lyon  County,  Nevada.  The  land  in  controversy  is  rich  in  minerals,  and 
was  not  surveyed  by  the  United  States  until  the  year  1807.  Prior  to  the  date  of 
the  survey,  or  the  approval  of  it,  the  defendant's  grantors  and  predecessors  in 
interest  had  for  mining  purposes  entered  upon  the  land,  and  claimed  and  occu- 
pied it  according  to  the  mining  laws  and  the  custom  of  miners  in  the  locality. 
This  possession  and  claim  of  ownership  have  been  continuous  and  uninterrupted, 
and  the  defendant  has  expended  over  eighty  thousand  dollars  in  the  construction 
of  improvements  for  carrying  on  the  business  of  mining  on  the  land. 

The  plaintiff  claims  title  from  the  State  by  patent.  It  is  dated  the  14th  day 
of  July,  1868,  and  was  issued  on  the  assumption  that  sections  sixteen  and  thirty- 
six,  whether  surveyed  or  unsurveyed,  and  whether  containing  minerals  or  not, 
were  granted  to  the  State  for  the  support  of  common  schools,  by  the  seventh 
section  of  the  Nevada  Enabling  Act,  approved  March  21st,  1864,  13  Stat.  32. 

This  interpretation  of  that  act  is  denied  by  the  General  Government,  and  the 
defendant  has  a  patent  of  the  2d  of  March,  1874,  from  the  United  States  for  the 
land  in  controversy,  issued  in  conformity  with  the  laws  of  Congress  on  the  sub- 
ject of  mining.  Which  is  the  better  title  is  the  point  for  decision.  It  has  been 
the  settled  policy  of  the  Government  to  promote  the  development  of  the  mining 
resources  of  the  country,  and  as  mining  is  the  chief  industry  in  Nevada,  the 
question  presented  for  decision  is  of  great  interest  to  the  people  of  that  State. 


Opinion  of  the  Supreme  Court. 


[Note.— The  following  Opinion  was  not  received  in  time  to  incorporate  in  the 
body  of  the  work.  See  reference  to  it,  and  decision  of  the  Supreme  Court  of 
Nevada  in  the  same  case,  on  pages  67-74,  Sec.  35.] 

Supreme  Court  op  the  United  States,  I  -^     S7S 
October  Term,  1876.  j 1N0,  °'S- 

Solomon  Heydenf eldt,  Plaintiff  in  Error,  |  In  error  to  the  Supreme  Court 

^  _  , ,      vf-  ..        ,,.   .       „  (of  the  State  of  Nevada. 

The  Daney  Gold  and  Silver  Mining  Company.  J 


Mr.  Justice  Davis  delivered  the  opinion  of  the  Court. 

This  is  an  action  of  ejectment  to  recover  a  specific  portion  of  the  west  half  of 
the  southwest  quarter  of  section  sixteen,  township  sixteen,  range  twenty-one 
east,  in  Lyon  County,  Nevada.  The  land  in  controversy  is  rich  in  minerals,  and 
was  not  surveyed  by  the  United  States  until  the  year  1867.  Prior  to  the  date  of 
the  survey,  or  the  approval  of  it,  the  defendant's  grantors  and  predecessors  in 
interest  had  for  mining  purposes  entered  upon  the  land,  and  claimed  and  occu- 
pied it  according  to  the  mining  laws  and  the  custom  of  miners  in  the  locality. 
This  possession  and  claim  of  ownership  have  been  continuous  and  uninterrupted, 
and  the  defendant  has  expended  over  eighty  thousand  dollars  in  the  construction 
of  improvements  for  carrying  on  the  business  of  mining  on  the  land. 

The  plaintiff  claims  title  from  the  State  by  patent.  It  is  dated  the  14th  day 
of  July,  1868,  and  was  issued  on  the  assumption  that  sections  sixteen  and  thirty- 
six,  whether  surveyed  or  unsurveyed,  and  whether  containing  minerals  or  not, 
were  granted  to  the  State  for  the  support  of  common  schools,  by  the  seventh 
section  of  tlie  Nevada  Enabling  Act,  approved  March  21st,  1864,  13  Stat,  :'»2. 

This  interpretation  of  that  act  is  denied  by  the  General  Government,  and  the 
defendant  has  a  patent  of  the  2d  of  March,  1874,  from  the  United  States  for  the 
land  in  controversy,  issued  in  conformity  with  the  laws  of  Congress  on  the  sub- 
ject of  mining.  Which  is  the  better  title  is  the  point  for  decision.  It  has  been 
the  settled  policy  of  the  Government  to  promote  t  lie  development  of  the  mining 
resources  of  the  country,  and  as  mining  is  the  chief  industry  in  Nevada,  the 
question  presented  for  decision  is  of  great  interest  to  the  people  of  that  State. 

The  seventh  section  of  that  act  is  as  follows:  "That  sections  numbered  six- 
teen and  thirty-six  in  every  township,  and  where  such  sections  have  been  sold 
or  otherwise  disposed  of  by  any  act  of  Congress,  other  lands  equivalent  thereto, 
in  Legal  subdivisions  of  not  less  than  one  quarter-section,  and  as  contiguous  as 
may  be,  shall  lie  and  are  hereby  granted  to  said  State  for  the  support  of  com- 
mon Sehools." 

it,  is  true  that  there  are  words  of  present  grant  in  this  law,  but  in  construing 

it.  we  are  OOl  to  Looi  at  any  single  phrase  in  it,  but  to  Its  whole  BCOpe,  In  order 

to  arrive  at  the.  intention  of  the  makers  of  it.    "  It  is  better  always,"  says  Shars- 

I   Judge    "to  adhere  to  a  plain,  common-sense  interpretation  of  the  words  of 

T  420  ] 

\ 


opinion.  421 

a  statute,  than  to  apply  to  them  refined  and  technical  rules  of  grammatical  con- 
struction."   (Gyges'  Estate,  65  Pa.  St.  312.) 

If  a  literal  interpretation  of  any  part  of  it  would  operate  unjustly  or  lead  to 
absurd  results,  and  be  contrary  to  the  evident  meaning  of  the  act  taken  as  a 
■whole,  it  will  be  rejected.  And  there  is  no  better  way  of  discovering  the  true 
meaning  of  a  law,  when  there  are  expressions  in  it  which  are  rendered  ambigu- 
ous by  their  connection  with  other  clauses,  than  by  considering  the  necessity 
for  it  and  the  causes  which  induced  the  legislature  to  pass  it.  With  these  rules 
as  our  guide  it  is  not  difficult,  we  think,  to  give  a  true  construction  to  the  law  in 
controversy. 

Congress,  at  the  time,  was  desirous  that  the  people  of  the  Territory  of  Nevada 
should  form  a  State  government  and  come  into  the  Union.  The  terms  on  which 
this  admission  could  be  obtained  were  proposed,  and,  as  was  customary  in  the 
enabling  acts  for  new  States,  the  particular  sections  of  the  public  lands  to  be 
donated  to  the  State  for  the  use  of  common  schools  were  specified.  These  sec- 
tions had  not  been  surveyed,  nor  had  Congress  then  made,  or  authorized  to  be 
made,  any  disposition  of  the  public  lands  within  the  Territory  of  Nevada. 

But  this  condition  of  things  did  not  stand  in  the  way  of  Congress  making 
proper  provision  on  the  subject.  Some  provision  was  necessary  in  order  to 
place  Nevada  in  this  respect  on  an  equal  footing  with  States  recently  admitted. 
But  the  people  were  not  interested  in  getting  the  identical  sixteenth  and  thirty- 
sixth  sections  in  every  township.  Indeed,  it  could  not  be  known  until  after 
survey  where  these  sections  would  fall,  and  a  grant  of  quantity  put  Nevada  in 
as  good  a  condition  as  other  States,  which  had  received  the  benefit  of  this  bounty. 
A  grant  operating  at  once  and  attaching  prior  to  the  surveys  by  the  United 
States,  would  deprive  Congress  of  the  power  of  disposing  of  any  part  of  the 
public  domain  until  there  was  a  segregation  by  survey  of  the  land  granted.  In 
the  meantime  further  improvements  would  be  arrested,  and  the  persons  who 
before  the  surveys  were  made  had  occupied  and  improved  the  country  would 
lose  their  possessions  and  labor,  in  case  it  turned  out  that  they  had  settled  upon 
the  granted  lands.  Congress  was  fully  advised  of  the  condition  of  a  new  com- 
munity like  Nevada ;  of  the  evil  effects  of  such  legislation  upon  its  prosperity, 
and  of  all  antecedent  legislation  upon  the  subject  of  the  public  lands  within 
the  bounds  of  the  proposed  new  State.  In  the  light  of  this  information,  and 
surrounded  by  these  circumstances,  Congress  made  the  grant  in  question.  That 
it  is  ambiguous  is  very  clear,  for  the  different  parts  of  it  cannot  be  reconciled, 
if  the  words  used  are  to  receive  their  usual  meaning.  Schulenberg  v.  Harriman, 
21  Wallace,  44,  establishes  the  rule  that  "  unless  there  are  other  clauses  in  a 
statute  restraining  the  operation  of  words  of  present  grant,  these  must  be  taken 
in  their  natural  sense."  This  is  a  correct  rule,  and  we  do  not  seek  to  depart  from 
it,  but  there  are  words  of  qualification  in  this  grant. 

And  these  words  restrict  the  operation  of  the  words  of  present  grant.  IS 
their  literal  meaning  be  taken,  they  refer  to  past  transactions ;  but  evidently 
they  were  not  used  in  this  sense,  for  there  had  been  no  lands  in  Nevada  sold  or 
disposed  of  by  any  act  of  Congress,  and  why  indemnify  the  State  against  a  loss 
that  could  not  occur  ?  There  could  be  no  loss,  and  there  was  no  occasion  of 
making  provision  for  substituted  lands  if  the  grant  took  effect  absolutely  on 
the  admission  of  the  State  into  the  Union,  and  the  title  to  the  lands  then  vested 
in  the  State.  Congress  cannot  be  supposed  to  have  intended  a  vain  thing,  and 
yet  it  is  quite  certain  that  the  language  of  the  qualification  was  intended  to 
protect  the  State  against  a  loss  that  might  happen  through  the  action  of  Con- 
gress in  selling  or  disposing  of  the  public  domain.  It  could  not,  as  we  have 
seen,  apply  to  past  sales  or  dispositions,  and  to  have  any  effect  at  all  must  be 
held  to  apply  to  the  future. 


422  opinion. 

This  interpretation,  although  seemingly  contrary  to  the  letter  of  the  statute, 
is  within  its  reason  and  spirit.  It  accords  with  a  wise  public  policy,  gives  to- 
Nevada  all  she  had  any  right  to  ask  for,  and  acquits  Congress  of  passing  a  law 
which  in  its  effects  would  be  unjust  to  the  people  of  the  Territory.  Besides,  no 
other  construction  is  consistent  with  the  statute  as  a  whole,  and  this  alone  an- 
swers the  evident  intention  which  the  makers  of  it  had  in  view,  and  this  was  tc- 
granttothe  State  inprasenti  a  quantity  of  lands  equal  in  amount  to  the  sixteenth 
and  thirty-sixth  sections,  the  grant  to  take  effect  when  the  status  of  the  lands 
was  fixed  by  survey  and  they  were  capable  of  identification.  Congress,  how- 
ever, reserved  until  this  was  done  the  power  of  disposition,  and  if  in  the  exer- 
cise of  this  power  the  whole  or  any  part  of  a  sixteenth  or  thirty-sixth  section 
had  been  disposed  of,  the  State  was  to  be  compensated  by  other  lands  equal 
in  quantity  and  as  near  as  may  be  in  quality.  By  this  means  the  State  waa 
indemnified  against  loss,  and  the  people  ran  no  risk  of  losing  the  labor  of  years. 
While  the  State  suffered  no  injury,  Congress  was  left  free  to  dispose  of  the  pub- 
lic domain  in  any  way  it  saw  fit,  to  promote  the  interests  of  the  people. 

It  is  argued  that,  conceding  the  construction  given  this  grant  to  be  correct, 
this- defense  cannot  be  sustained,  because  the  land  in  controversy  was  not  act- 
ually sold  by  direction  of  Congress  until  after  the  survey.  This  position  ignores 
a  familiar  rule  in  the  construction  of  statutes,  that  they  must  be  so  construed 
as  to  admit  all  parts  of  them  to  stand  if  possible.  (1  Bouvier's  Institutes,  p. 
42,  Sec.  7.) 

The  language  used  is,  "sold  or  otherwise  disposed  of  by  an  act  of  Congress," 
and  the  point  made  by  the  plaintiff  would  reject  a  part  of  these  words  from  the' 
statute. 

To  limit  the  qualification  to  the  grant  in  this  way  would  defeat  one  of  the- 
main  purposes  Congress  had  in  view.  Congress  knew,  as  did  the  whole  country, 
that  Nevada  was  possessed  of  great  mineral  wealth,  and  that  mineral  lands 
should  be  disposed  of  differently  from  those  which  were  fit  only  for  agriculture. 
No  method  fordoing  this  had  then  been  provided,  but  Congress  said  to  the  people 
of  the  Territory,  "  You  shall,  if  you  decide  to  come  into  the  Union,  have  for  the 
use  of  schools  a  quantity  of  land  equal  to  two  sections  in  every  township,  and 
the  identical  sections  themselves,  if  on  survey  no  one  else  has  any  claim  to  them, 
but  until  this  decision  is  made  and  the  lands  surveyed  we  reserve  the  right 
either  to  sell  them  or  dispose  of  them  in  any  other  way  that  commends  itself 
to  our  judgment."  This  right  of  disposition  is  subject  to  no  limitations,  and  the 
wisdom  of  not  surrendering  it  is  apparent.  The  whole  country  is  interested  in 
the  development  of  its  mineral  wealth,  and  to  accomplish  this  object  adequate 
protection  was  required  for  those  engaged  in  this  business.  This  protection  was 
furnished  by  the  Act  of  Congress  of  July  2Gth,  1866,  (14  TJ.  S.  Stats,  p.  251)  which 
was  passed  before  the  land  in  controversy  was  surveyed.  This  act  disposes  of 
the  mineral  lands  of  the  United  States  to  actual  occupants  and  claimants,  and 
provides  a  method  for  the  acquisition  of  title  from  the  United  States.  And 
these  defendants  occupied  the  land  prior  to  the  survey  and  were  entitled  to 
purchase,  and  the  patent  subsequently  obtained  from  the  Government  relates 
back  to  the  time  of  the  original  location  and  entry,  and  perfects  their  title. 

These  views  dispose  of  this  case,  but  there  is  another  ground  equally  conclu- 
sive. Congress,  on  the  4th  of  July,  1866,  (14  Stat.  p.  85)  passed  an  act  concern- 
ing lands  grant  ed  to  the  State  of  Nevada,  and,  among  other  things,  reserved 
from  sale  all  mineral  lands  in  the  State,  and  authorized  the  lines  of  surveys  to 
i«e  changed  from  rectangular,  so  as  to  exclude  them.  This  was,  doubtless,  In- 
tended by  ( longress  as  a  construction  of  the  grant  in  this  case;  but  whether  that 
constriK  tion  be  correct  or  not,  and  whatever  may  be  the  effect  of  the  grant  in  its 
original  shape,  it  was  clearly  competent  for  the  grantee  to  accept  it  in  its  modi- 
fied form,  and  agree  to  any  construction  put  upon  it  by  the  grantor.     The  State, 


opinion.  423 

through  its  legislature,  (see  Act  of  February  13th,  1867)  ratified  the  construction 
given  to  it  by  Congress,  and  accepted  it  with  the  conditions  annexed. 

We  agree  with  the  Supreme  Court  of  Nevada  that  this  acceptance  "was  a 
recognition  by  the  legislature  of  the  State  of  the  validity  of  the  claim  made  by 
the  Government  of  the  United  States  to  the  mineral  lands." 

It  is  objected  that  the  constitution  of  Nevada  inhibits  such  legislation,  but 
the  Supreme  Court  of  the  State,  in  the  case  we  are  reviewing,  held  that  it  did 
not,  (10  Nevada  Reports,  p.  314)  and  we  think  their  reasoning  on  this  subject  is 
conclusive. 

"We  see  no  error  in  the  record,  and  the  judgment  is  affirmed. 


Table  of  Cases  and  Statutes  Cited. 


Note. — In  this  Table  of  Cases  the  following  abreviations  are  used  : 

D.  C Decision  of  Commissioner  of  General  Land  Office. 

D.  A.  C Decision  of  Acting  Commissioner. 

D.  S Decision  of  Secretary  of  Interior. 

D.  A.  S Decision  of  Acting  Secretary. 

D.  A.  G Decision  or  Opinion  of  Attorney-General  of  United  States. 

D.  A.  A.  G Decision  or  Opinion  of  Assistant  Attorney-General. 

The  reference  is  to  the  page  of  the  volume. 


A. 

Ah  Yew  v.  Choate,  24  Cal.  562,  pp.  43, 

331. 
Ajax,  or  Big  Indian  Lode,  In  re,  D.  C. 

p.  226. 
Alford  v.  Barnum,  45  Cal.  482,  pp.  76, 

77. 
Alger  Lode,  In  re,  D.  C.  pp.  226,  227. 
American  Company  v.  Bradford,   27 

Cal.  360,  p.  265. 
Antelope  Lode,  In  re,  D.  S.  p.  223. 
Atchison  v.  Peterson,  20  Wall.  510,  pp. 

279,  280. 
Attorney-General's  Opinions — 
Feb.  11th,  1862,  p.  2. 
Sept.  30th,  1870,  p.  203. 
July  21st,  1871,  pp.  9,  31,  211. 
Aug.  7th,  1871,  p.  98. 
July  21st,  1871,  p.  93. 
Nov.  24th,  1871,  p.  170. 
Ayers  v.  Foley,  D.  S.  p.  223. 


Bagnell  v.  Broderick,  13  Pet.  436,  pp. 

109,  179,  271. 
Ballancer  v.  Forsyth,  13  How.  18,  p. 

179. 
Bank  of    Commerce  Lode,   D.  A.  C. 

p.  219. 
Bank    of    the    U.  S.    v.    Deveaux,    5 

Cranch,  84,  p.  92. 
Barnard's  Heirs  v.  Ashley's  Heirs,  18 

How.  43,  pp.  371,  372. 
Barry  v.  Gamble,  8  Mo.  88,  p.  139. 
Basey  v.  Gallagher,  20  Wall.  685,  pp. 

283,  284. 
Bates  v.  Chambers,  D.  C.  p.  192. 
Bealey  v.  Shaw,  6  East,  208,  p.  272. 


Bear  Kiver  &  A.  W.  &  M.  Co.  v.  N.  Y. 

M.  Co.  8  Cal.  327,  p.  265. 
Beard  v.  Federy,  3  Wall.  479,  p.  179. 
Becker  v.  Central  City,  Colorado,  D. 

C.  pp.  307,  308. 
Beckner  v.  Coates,  D.  A.  C.  p.  91. 
Bigelowu.  Willson,  1  Pick.  485,  p.  164. 
Bissell  v.  Bissell,  11  Barb.  96,  p.  164. 
Blanchard  v.  Sprague,  3  Sum.  535,  p. 

269. 
Boston  Quicksilver  Mine,  In  re,  D.  A. 

S.  p.  149. 
Brashear  v.  Mason,  6  How.  92,  p.  138. 
Broder  v.   Natoma  W.   &  M.  Co.   50 

Cal.  621,  p.  261. 
Brown  v.  Lewis,  D.  C.  p.  176. 

v.  Quartz  M.  Co.  15  Cal.  155,  p. 
87. 
Brunswick  Mine,  D.  C.  pp.  114, 374. 
Brush  v.  Ware,  15  Pet.  93,  p.  179. 
Burr  v.  Lewis,  6  Tex.  76,  p.  64. 
Butte  Canal  &  D.  Co.  v.  Vaughn,    11 

Cal.  143,  p.  265. 
Butte  Table  Mt.  Co.  v.  Morgan,  19  Cal. 

609,  p.  265. 


C. 


Cal.  &  Oregon  P.  P.  In  re,  D.  C.  228, 
p.  338. 

Cann.  v.  Warren,  1  Houst.  188,  p.  164. 

Carleton  v.  Byington,  16  Iowa,  588,  p. 
164. 

Carron  v.  Curtis,  D.  C.  p.  302. 

Carothers  v.  Wheeler,  1  Oregon,  194,  p. 
164. 

Cascade  Lode,  In  re,  p.  162. 

Central  Pacific  Eailroad  Co.  v.  Mam- 
mouth  Blue  Gravel  Co.  D.  C.  &  D. 
S.  p.  375. 


[425] 


426 


TABLE    OF    CASES. 


Cerro  Bonito  Quicksilver  Mine,  D.  S. 

p.  358. 
Chambers  v.  Pitt,  D.  S.  p.  207. 
Chicago  &  C.  C.  G.  &  S.  M.  Co.  In  re, 

D.  A.  C.  p.  140. . 
Chouteau  w.  Moloney,  16  How.  203,  pp. 

45,  46. 
City  Kock.   and   Utah    Claimants   v. 

Pitts,  D.  C.  p.  98. 
Clark  v.  Calkins,  D.  C.  p.  221. 

v.  Ellis,  D.  S.  p.  332. 
Clear  Creek  Q.  Mine,  D.  C.  p.  9. 
Cole  v.  Cole,  33  Me.  542,  p.  195. 
Colman  v.   Clements,   23  Cal.  245,   p. 

266. 
Columbia  M.  Co.  ».  Holter,  1  Mont.  296, 

p.  289. 
Comegys  v.  Vasse,  1  Peters,  212,  p.  371. 
Consolidated  Channel  Co.  i\  Central  P. 

K.  R.  51  Cal.  269,  p.  262. 
Coml.  &  R.  R.  Bank  of  Vicksburg  v. 

Slocum,  14  Pet.  60,  p.  92.. 
Commissioner  of   the    General   Land 
Office,  Decisions  of — 

June  6th,  1868,  p.  8. 

Aug.  15th,  1868,  p.  358. 

Aug.  27th,  1868,  p.  3. 

Sept.  1st,  1868,  p.  93. 

Jan.  21st,  1869,  p.  178. 

Jan.  28th,  1869,  pp.  7,  185,  374. 

July,  1869,  p.  33. 

Aug.  15th,  1869,  p.  358. 

Aug.  25th,  1869,  p.  80. 

Nov.  6th,  1869,  p.  102. 

Nov.  20th,  1869,  p.  261. 

Dec.  10th,  1869,  p.  370. 

Jan.  14th,  1870,  p.  223. 

March,  8th,  1870,  p.  291. 

April  15th,  1870,  p.  112. 

April  17th,  1870,  p.  76. 

April  18th,  1870,  p.  132. 

May  24th,  1870,  p.  67. 

Aug.  17th,  1870,  p.  121. 

Aug.  27th,  1870,  p.  241. 

Sept.  11th,  1870,  p.  159. 

Sept.  14th,  1870,  p.  178. 

March  1st,  1871,  p.  338. 

March  14th,  1871,  p.  77. 

April  16th,  1871,  p.  258. 

June  7th,  1871,  p.  98. 

Aug.  4th,  1871,  p.  106. 

Aug.  26th,  1871,  p.  59. 

Aug.  26th,  1871,  p.  241. 

Oct.  21st,  1871,  pp.  301,  337. 

Nov.  24th,  1871,  p.  319. 

Dec.  2d,  1871,  p.  319. 

Dec.  7th,  1871,  p.  319. 

Dec.  29th,  1871,  p.  227. 

Jan.  22d,  1872,  p.  319. 

.Ian.  24)  h,  1S72,  p.  331. 

Feb.  12th,  1872,  p.  80. 

Feb.  23d,  1872,  p.  377. 
Feb.  27th,  1872,  p.  178. 

March  Llth,  L872,  pp.  319, 821, 825. 

March  20th,  L872,  pp.  319,  326. 

March,  27th,  1872,  pp.  32,  33. 

April20th,  1872,  p.  819. 

Aug.  8th,  1872,  p.  248. 

Aug.  I'.iili,  1872,  ]>.  :«M. 

Aug.  21st,  1872,  p.  367. 


Commissioner,  Decisions  of — Cont'd. 
Aug.  27th,  1872,  p.  115. 
Sept.  9th,  1872,  p.  118. 
Sept.  14th,  1872,  p.  120. 
Sept.  20th,  1872,  p.  113. 
Nov.  12th,  1872,  p.  375. 
Dec.  10th,  1872,  p.  200. 
Dec.  26th,  1872,  p.  140. 
Jan.  1st,  1873,  p.  115. 
Jan.  22d,  1873,  p.  175. 
Jan.  30th,  1873,  p.  377. 
Feb.  3d,  1873,  p.  96. 
April  14th,  1873,  p.  377. 
April  Kith,  1873,  p.  255. 
April  18th,  1873,  p.  81. 
May  19th,  1873,  p.  240. 
May  20th.  1873,  pp.  103,  255. 
June  17th,  1873,  p.  106. 
June  26th,  1873,  p.  38 
July  10th,  1873,  p.  79. 
July  15th,  1873,  pp.  79,  100. 
July  26th,  1873,  p.  148. 
July  30th,  1873,  p.  350. 
Sept.  llth,  1873,  p.  96. 
Sept.  25th,  1873,  p.  109. 
Oct.  8th,  1873,  p.  25. 
Oct.  23d,  1873,  p.  147. 
Oct.  31st,  1873,  p.  226. 
Nov.  llth,  1873,  p.  301. 
Nov.  18th,  1873,  p.  102. 
Dec.  llth,  1873,  p.  377. 
Jan.  6th,  1874,  pp.  140,  159. 
April  20th,  1874,  pp.  119, 120. 
April  27th,  1S74,  p.  80. 
July  21st,  1874,  pp.  163,  222. 
Oct.  23d,  1874,  pp.  79,  80. 
Nov.  3d,  1874,  p.  349. 
Dec.  2d,  1874,  pp.  119,  120. 
Dec.  14th,  1874,  p.  98. 
Dec.  17th,  1874,  p.  176. 
Jan.  30th,  1875,  pp.  79,  80,  121. 
Feb.  llth,  1875,  p.  100. 
March  llth,  1875,  p.  115. 
June  28th,  1875,  p.  79. 
July  29th,  1875,  p.  47. 
Aug.  4th,  1875,  pp.  309,  339. 
Aug.  14th,  1875,  p.  329. 
Aug.  17th,  1875,  p.  144. 
Oct.  21st,  1875,  p.  254. 
Oct.  28th,  1875,  p.  144. 
Nov.  5th,  1875,  p.  57. 
Dec.  1st,  1875,  p.  377. 
Dec.  3d,  1875,  p.  79. 
Jan.  3d,  1876,  p.  335. 
Jan.  27th,  1876,  p.  154. 
March  7th,  1876,  p.  162.  . 
Marcli  25th,  1876,  p.  247. 
June  2d,  1876,  p.  376. 
June  10th,  1876,  p.  174. 
June  13th,  1876,  p.  125. 
June  14th,  1876,  p.  349. 
June  21st,  1876,  p.  301. 
July  18th,  187(i,  p.  96. 
•July  21st,  1876,  p.  39. 
Aug.  26th,  1876,  p.  377. 
Aug.  28th,  1876,  p.  174. 
Nov.  23d,  187(5,  p.  305. 
Jan.  4th,  1877,  p.  167. 
Cooper  v.  Roberts,  18  How.  173,  pp.  44 
65,66. 


TABLE    OF    CASES. 


427 


Cornell  v.  Moulton,  3  Denio,  12,  p.  164. 
Corning  v.  Troy  Iron  &  Nail  Factory, 

40  N.  Y.  191,  p.  272. 
Corning  Tunnel  Mining  &  Reduction 

Co.  v.  Bell,  D.  S.  110. 
Corning  Tunnel  Mining  &  Reduction 

Co.  v.  Pell,  D.  S.  185. 
Cotton  v.  U.  S.  11  How.  229,  pp.  44,  271. 
Cousin  v.  Blanc's  Executors,  19  How. 

202,  p.  371. 
Covington  Drawbridge  Co.  v.  Shepherd, 

20  How.  233,  p.  92. 
Craig  v.  Leslie,  3  Wheat.  563,  pp.  97. 
173. 
v.  Radford,    3   Wheat.    594,   p. 
143. 
Crismon  v.  U.  P.  R.  R.  Co.  D.  C.  p.  351. 
Crooker  v.  Bragg,  10  Wend.  260,  p.  272. 
Cross  v.  DeValle,  1  Wall.  1,  pp.  97, 173. 
Crown  Point  Lode,  D.  S.  pp.  173-177. 
C.  T.  M.  Co.  v.  Bell,  D.  S.  p.  206. 
Cunningham  v.  Ashley,  14  How.  377, 

pp.  139,  370. 


Daney  G.  &  S.  M.  Co.  v.  Sapphire  M. 

Co.  D.  S.  p.  178. 
Daniel  Ball,  The,  10  Wall.  557,  p.  374. 
Daniel  Peters  Lode,  D.  C.  p.  178. 
Dardanelles  M.  Co.  v.  Cal.  M.  Co.  D.  A. 
S.  p.  185. 
v.  Bosphorus  Lode, 
D.  C.  p.  186. 
Dartmouth   College  v.  Woodward,  4 

Wheat.  636,  p.  91. 
Davenport  v.  Lamb,  13  Wall.  418,  p. 

179. 
Davis  v.  Fuller,  12  Vt.  190,  p.  272. 
Decatur  v.  Paulding,  14  Pet.   497,  p. 

138. 
Delaney  v.  Thomas,  D.  C.  p.  66. 
Delogny  v.  Rentoul,   2  Mart.   175,  p. 

195. 
Doe  v.  Beebe,  13  How.  25,  p.  375. 
Doe  v.  Eslava,  9  How.  421,  p.  371. 
Doll  v.  Meador,  16  Cal.  296,  p.  64. 
Dredge  v.  Forsyth,  2  Black.  563,  p.  179. 
Dunkirk  Lode,  D.  C.  31. 
Dutch  Flat  Placer  Canon  Claim,  D.  C. 

p.  147. 


Earl  Mine  v.  Mt.  Pleasant  Mine,  D.  A. 

S.  pp.  149,  219. 
Easton  v.  Salisbury,  21  How.  426,  p. 

63. 
Eddy  v.  Simpson,  3  Cal.  249,  p.  264. 
Elliot  v.  Fitchburg  R.  R.  Co.  10  Cush. 

193,  p.  272. 
Embrey  v.  Owen,  6  Ex.  353,  p.  272. 
Empire  Mining  Co.  1  D.  C.  pp.  146,  147. 
Equator  M.  &  Smelting  Co.  v.  Marshall 

S.  M.  Co.,  D.  A.  O,  D.  S.,  and  D.  A. 

G.  p.  187. 
Equator  Lode,  D.  C.  pp.  171,  252. 
Eureka  Lode,  In  re,  186. 


Eureka  M.  Co.  v.  Jenny  Lind  Co.  D. 

A.  A.  G.  p.  195. 
Evans  v.  Randall,  D.  S.  p.  197. 
Ewing  v.  Hartman,  D.  C.  p.  332. 
Excelsior  Lode,  D.  S.  p.  186. 


Fairfax  v.  Hunter,  7  Cranch,  603,  pp. 

96,  143. 
Fairmount  Lode  and  Mill  Site,  D.  C.  p. 

221. 
Farwell  v.  Rogers,  4  Cush.  460,  p.  64. 
Fenn  v.  Holme,  21  How.  481,  p.  339. 
Fenian  Star  Lode,  D.  C.  p.  221. 
Field  v.  Seabury,  19  How.  323,  p.  179. 
Finley  v.  Williams,  9  Cranch,  164,  p. 

372. 
Finney  v.  Berger,  50  Cal.  248,  p.  64. 
Flagstaff  Case,  pp.  22,  24,  162,  170,  167- 

226. 
Fletcher  v.  Peck,  6  Cranch,  87,  pp.  42, 

691. 
Foley  v.  Harrison,  15  How.  447,  p.  64. 
Foscalina  v.  Doyle,  47  Cal.  437,  p.  134. 
Four  Twenty  M.  Co.  v.  Bullion  M.  Co. 

D.  S.  3  Sawy.  634,  pp.  154,  188,  197, 

208,  225. 
French  v.  Fyan,  3  Otto,  119,  p.  134. 
Fuller  v.  Hampton,  5  Conn.  416,  p.  195. 


Gaines  v.  Nicholson,  9  How.  365,  p.  66. 

v.   Thompson,  7  Wall.   352,  p. 

138. 

Galloway  v.  Finley,  12  Pet.  264,  p.  179. 

Gardners.  Newburgh,  2  Johns.  Ch.  166, 

p.  272. 
Garland  v.  Wynn,  20  How.  6,  pp.  371, 

372. 
Gibson   v.  Chouteau,   13  Wall.  92,   p. 

139. 
Golconda  Mine,  D.  C.  p.  256. 
Gold  Hill  Q.  M.  Co.  v.  Ish,  5  Oregon, 

104,  pp.  5,  40,  328,  329. 
Gorst  v.  Lowndes,  11  Sim.  434,  p.  164. 
Goodtitle  v.  Kibbe,  9  How.  471,  p.  375. 
Gorham  v.  Wing,  10  Mich.  486,  p.  164. 
Gould  v.  Conde  Lode,  D.  C.  p.  13. 
Governeur's    Heirs    v.   Robertson,   11 

Wheat.  332,  pp.  97,  143. 
Green  v.  Liter,  8  Cranch,  229,  p.  372. 
Gregg  v.  Tesson,  1  Black,  150,  p.  179. 
Griffith  v.  Bogert,  18  How.  162,  p.  164. 
Grogan  v.  Knight,  27  Cal.  517,  p.  66. 
Gus  Belmont  Lode,  D.  C.  pp.  13,  103. 


Hall  v.  Litchfield,  D.  A.  C.  p.  50. 
Harris  v.  Shoutz,  p.  259. 
Harris  Lode,  In  re,  D.  C.  p.  225. 
Hawley  Consolidated  M.  Co.  v.  Mem- 
non,  D.  S.  p.  190. 


428 


TABLE   OF   CASES. 


Helmic  Mine,  In  re,  D.  C,  D.  A.  S.  p. 
31. 

Henrietta  Lode,  In  re,  p.  186. 
Henshaw  v.  Bissell,  18  Wall.   255,    p. 

149. 
Hercules  Lode  and  Seven  Thirty,  In 

re,  D.  C.  pp.  20,  140,  146,  174,  180. 
Hestres  v.  Breunan,  50  Cal.  211,  p.  374. 
Heydenfelt  v.  Daney  G.  &  S.  M.  Co.  10 

Nev.  290,  p.  74. 
Hidden  Treasure  Lode,  D.  C.  p.  48. 
Higgins  v.  Houghton,  25  Cal.  252,  pp. 

44,  62,  64.  66,  69. 
Hobart  v.  Ford,  6  Nev.  77,  p.  287. 
Hill  v.  King,  8  Cal.  336,  p.  265. 

v.  Smith,  27  Cal.  483,  pp.  265,  280. 
Hoffman  v.  Stone,  7  Cal.  49,  pp.  264, 

287. 
Holland  v.  Gulielmi,  D.  C.  p.  358. 
Hoofnagle  v.  Anderson,  7  Wheat.  212, 

p.  179. 
Hooper  v.   Scheimer,  23  How.  235,  p. 

179. 
Hosmer  v.  Wallace,  47  Cal.  461,  p.  374. 
How  v.  Missouri,  12  How.  126,  p.  66. 
Huff  v.  Doyle,  3  Otto,  558,  p.  59. 
Hunt  i-.Wickliffe,  2  Pet.  201,  p.  372. 


Idaho  Lode,  In  re,  D.  C.  p.  140. 
Inimitable  Co.  In  re,  D.  C.  p.  374. 
Instructions  of  Land  Department — 

Jan.   14th,  1867,  pp.  5,  11,  12,  15, 

21,  23,  27,  257,  313. 
June  25th,  1867,  pp.  19,  36,  37. 
May  16th,  1868,  pp.  310,  311. 
July.  1869,  p.  36. 
July  25th,  1870,  p.  369. 
Aug.  8th,  1870,  pp.   6,  15,  16,  17, 

95.  236,  239. 
June  8th,  1870,  p.  183. 
May  6th,  1871,  pp.  76,  235,   315, 

327, 
Aug.  3d,  1871,  p.  98. 
Sept.  7th,  1871,  p.  96. 
March  20th,  1872,  p.  326. 
.March  26th,  1872,  p.  96. 
June  lot!],  1S72,  pp.   1,  9,  83,99, 

104,  105,   bis,  ill,  112,   118,  122, 

128,  129,  130,  131,  132,  164,228. 
April  15th,  L873,  pp.  342,  343,  344, 

345,  346,  :'.17,  348,  .'"49. 
Aug.  11th  and  14th,  1873,  p.  352. 
Now  -nth,  L873,  pp.  124,  127,  158. 
Nov.  29th,  1875,  ]>.  354. 
Deo.  1st,  L875,  |>.  354 
June  '.nh,  L874,  354. 
Feb.  19th,  L875,  p.  246. 
March  Llth,  187&  p.  120. 
.tunc  171  li,  1875,  303. 
Feb.  1st.  I.S77,  pp.  63,  97,  104,  105, 

108,  L09,  161,  303,826,  367,  368. 
Irvine  r.  Marshall,  20  How.  558,  pp. 

130,271. 
Irwin  /•.  Phillips,  •",  Cal.  140,  p.  264. 


Jackson  i'.  Beach,  1  Johns.  Cas.401,  pp. 

96,  143. 
Jefferson  M.  Co.  v.  Penn.  M.  Co.  D.  C. 

pp.  153,  163,  222. 
Jennv  Lind  M.  Co.  v.  Eureka  M.  Co. 

D.  S.  pp.  163,  164,  186,  192. 

Johnson  v.  Towsley,  13  Wall.  72,  pp. 

109,  179,  371. 

v.  Jordan,  2  Met.  239,  p.  272. 

Jones  &  Matteson  Lode,  D.  C.  p.  220. 

Josephs  v.  U.  S.  1  Nott.  &  H.  197,  p. 

38. 
Jourdan  v.  Barrett,  4  How.  185,  p.  271. 
Judd  v.  Fulton,  10  Barb.  117,  p.  164. 
Julia  Gold  and  Silver  M.  Co.  D.  C;  D. 

S.  p.  250. 


K. 

Kansas  Lode,  D.  C.  p.  147. 

Kelly  v.  Taylor,  23  Cal.  14,  p.  158. 

Kelsey  Lode,  D.  C.  p.  8. 

Kempton  Mine,  D.  C.  &  D.  S.  pp.  90, 

141,  142,  152,  156,  161,  179,  227. 
Kendall  v.  U.  S.  p.  108. 
Kernan  0.  Griffith,  27  Cal.  87,  p.  137. 
Keystone  Case,  D.  C.  D.  S.,  pp.  64,  65, 

349. 
Kidd  v.  Laird,  15  Cal.  161,  pp.  264,  265. 
Kimball  v.  Gearhart,  12  Cal.  27,  p.  266. 
Kimm  v.  Osgood's  Adm.  19  Mo.  60,  p. 

164. 
King  David  Lode,  In  re,  D.  S.  p.  186. 
King  of  the  West  Lode,  D.  C.  pp.  186, 

196,  201,  223. 
King  of  the  West  v.  City  Rock  Lode, 

D.  S.,  D.  A.  S.  pp.  219,  220. 
Kissell  v.   St.  Louis  Public  School,  18 

How.  19,  p.  66. 


L. 


Lady  Allen  Lode,  D.  C.  p.  143. 

Lafayette's  Heirs  v.  Kenton,  18  How. 
197,  p.  179. 

Lake  Quicksilver  M.  Co.  D.  C.  p.  152. 

Lang  v.  Phillips,  27  Ala.  311,  p.  164, 

Lessieur  r.  Price,  12  How.  59,  p.  66. 

Lindsey  v.  Haws,  2  Black,  554,  pp.  139, 
370,  372. 
V.  Miller,  6  Pet.  672,  p.  139. 

Litchfield/'.  The  Register  and  Receiv- 
er, Woolw.  299,  pp.  138,  374. 

Little  Fred  Mine,  D.  C.  p.  121. 

Live  Oak  Quartz  Mine,  D.  A.  C.  p.  280. 

Lobdell  '•.  Simpson,  2  Nev.  274,  p.  280. 

Louisville  R.  R.  Co.  v.  Letson,  2  How. 
550,  ]>.  92. 

Lykens   Valley  Coal  Co.  v.  Dock,  62 
"Penn.  231,  St.  p.  89. 

Lyons  /■.  Hunt,  11  Ala.  295,  p.  164. 

Lytic   v.  Arkansas,  22   How.  193,  pp. 
371,  372. 


TABLE   OF    CASES. 


429 


M. 

Magnolia  M.  Co.  v.  Magn.  E.  &  W.  Co. 

D.  C.  p.  227. 
Maney  v.  Carter,  4  Conn.  635,  p.  195. 
Mann  v.  Wilson,  23  How.  458,  p.  179. 
Marshall  v.  B.  &  O.  R.  R.  Co.  1(5  How. 

327,  p.  92. 
Marvin  v.  Richmond,  3  Denio,  58,  p. 

195 
Mason  v.  Hill,  5  B.  &  Ad.  22,  p.  272. 
Magwire  v.  Tyler,  1  Black,  195,  p.  371. 
McArthur  v.  Browder,  4  Wheat.  488, 

pp.  179,  372. 
McDonald  v.  Askew,  29  Cal.  200,  p.  264. 
v.  Bear  R.  Co.  13  Cal.  220,  p. 
264. 
McGarrahan  v.  New  Idria  M.   Co.  49 

Cal.  335,  p.  134. 
McGarrity  v.  Byington,  12  Cal.  426,  p. 

266. 
McGillivray  v.  Evans,  27  Cal.  92,  p.  265. 
McKenna  v.  Dillon,  D.  A.  S.  p.  335. 
McKibben  Lode,  D.  C.  p.  13. 
McKiuney  v.  Smith,  21  Cal.  374,  p.  265. 
McLaughlin  v.  Powell,  50  Cal.  64,  p.  75. 
McMurdy»>.  Streeter,  D.  S.  pp.  162, 186. 
Melton  r.  Lambard,  51  Cal.  258,  p.  219. 
Middleton  v.  Low,  30  Cal.  596,  p.  66. 
Miller  v.  Kerr,  7  Wheat.  1,  p.  179. 
Mills  v.  Rolls  &  Ross,  D.  A.  S.  p.  332. 
Minnesota  v.  Batchelder,  1  Wall.  109, 

p.  373. 
Minter  v.  Crommelin,  18  How.  88.  p.  57. 
Mono  Mine  Co.  v.  Gisborn,  D.  C.  and 

D.  A.  A.  G.  p.  192. 
Montana  Fluming  &  M.  Co.  D.  C.  p. 

220. 
Montana  Lode,  In  re,  D.  C.  p.  186. 
Montello,  The,  11  Wall.  411,  p.  374. 
Morrow  v.  Kingsbury,  Cal.  N.  R.  p.  64. 
Morse  v.  Streeter,  D.  C.  and  D.  S.  p. 

219. 
Morton  v.  Greene,  21  Wall.  660,  p.  50. 
v.  Nebraska,  21  Wall.  660,  p.  49. 
Mount  v.  Bogart,  Anth.  259,  A.  S.  p. 

149. 
Mountain  City  Lode,  In  re,  D.  C.  p. 

226. 
Mountain  Tiger  Lode,  D.  A.  C.  pp.  188, 

367. 
Mountjoy  Lode,  D.  C.  p.  28. 
Mt.  Pleasant  Mine  and  Earl  Mine,  D. 

A.  S.  p.  149. 


N. 


Nagler's  Application,  D.  C.  p.  304. 
Nelson's   Lessee  v.  Moon,  3  McLean, 

319,  p.  179. 
Nevada  C.  P.  R.  R.  Co.  D.  C.  p.  328. 
Nevada  Water  Co.  v.  Powell,  34  Cal. 

109,  p.  264. 
Newark  Mill  and  M.  Co.  v.  Meinke, 

D.  S.  p.  303. 
New  Idria  Mine,  McGarrahan' s  Case, 

D.  A.  S.,  D.  A.  A.  G.,  D.  A.  G.,  pp. 

22,  33,  152. 


New  Orleans  v.  DeArmas,  9  Pet.  223, 
p.  179. 
v.  United  States,  10  Pet. 
662,  p.  179. 
Northern  Light  and  Fair  View  Mine, 

D.  C.  pp.  150,  162. 
Noteware  v.  Sterns,  1  Mont.  311,  p.  289. 


Oliver  v.  Piatt,  3  How.  333,  p.  179. 
Omaha  Gold  Quartz  Mine,  D.  A.  C.  p. 

223. 
Ophir  S.  M.  Co.  v.  Carpenter,  4  Nev. 

534,  p.  285. 
Orr  v.  Hodgson,  4  Wheat,  453,  pp.  96, 

143. 
Ortman  v.  Dixon,  13  Cal.  34,  p.  264. 
Osterman  v.  Baldwin,  6  Wall.  116,  pp. 

96,  143. 
Overman  Silver  M.  Co.  v.  Dardanelles 

S.  M.  Co.  D.  C.  and  D.  S.  pp.  202, 

368. 
Owens  v.  Jackson,  9  Cal.  322,  p.  64. 


Packer  v.  Heaton,  9  Cal.  568,  p.  266. 
Page  v.  Weymouth,  47  Me.  238,  p.  164. 
v.  Wiliams,  2  Dev.  &  B.  55,  pp. 
52,  72\ 
Parker  v.  Duff,  47  Cal.  554,  pp.  134,  374. 
Patterson  v.  Lynch,  Sawy.  N.  R.  p.  76. 
v.  Tatum,  3  Sawy.  164,  p.  179. 
Pelican  Lode,  D.  C.  and  D.  S.  p.  188. 
Penn.  Quartz  Mines,  D.  C.  pp.  153,  222. 
People  v.  Shearer,  30  Cal.  645,  p.  4. 

v.  Stratton,  25  Cal.  242,  p.  76. 
v.  Williams,  35.  Cal.  673,  p.  88. 
Philadelphia  Lode  v.  Pride,  D.  C.  pp. 

156,  157. 
Phoenix  Water  Co.  v.  Fletcher,  23  Cal. 

481,  p.  265. 
Polk  v.  Wendal,  9  Cranch,  99,  p.  57. 
Pollard's  Lessee  v.  Hagan,  3  How.  212, 

p.  374. 
Pope  v.  Headen,  5  Ala.  433,  p.  164. 
Porcupine  Mine,  D.  C.  p.  191. 
Prince  of  Wales  Lode,  D.  S.  p.  162. 
Pugh  v.  Wheeler,  2  Dev.  &  B.  50,  p.  272. 
Pulliam  v.  Hunter,  D.  S.  p.  334. 


Railroad   v.  Fremont,  9  Wall.  90,  p. 
66. 
v.   Schurmier,   7  Wall.    272, 

pp.  272,  375. 
v.    Smith,    9    Wall.   99,   pp. 
16,  66,  108. 
Read  v.  Caruthers,  47  Cal.  181,  p.  76. 
Recside  v.  Walker,  11  How.  272,  p.  138. 
Red  Pine  Mines,  D.  C.  p.  201. 
Red  Warrior  Lode,  D.  A.  C.  p.  25. 
Reichart  v.  Felps,  6  Wall.  160,  pp.  57, 
63. 


430 


TABLE    OF    CASES. 


Richardson  v.  Kier,  34  Cal.  63,  p.  265. 
Robinson  v.  Forrest,  29  Cal.  317,  pp. 

64-76. 
Rockwell  Lode,  D.  A.  C.  pp.  188,  367. 
Rogers  v.  Cooney,  7  Nev.  213,  p.  89. 
Root  v.  Shields,  1  Woolw.  340,  p.  179. 
Rupley  v.  Welch,  23  Cal.  452,  p.  264. 
Russell  v.  Beebe,  Hemp.  704,  p.  38. 
Rutherford  v.  Green's  Heirs,  2  Wheat. 

196,  p.  66. 


S. 


Saco  Lode,  D.  C.  p.  218. 

Sacramento  M.  Co.  v.  Last  Chance  M. 

Co.  D.  C.  pp.  223,  252. 
Samson  v.  Smiley,  13  Wall.  91,  p.  179. 
San  Augustine  M.  Co.  D.  C.  p.  102. 
Sanborn  v.  Neilson,   4  1ST.  H.  501,    p. 

195. 
Santa  Rita  del  Cobre  Mine,  D.  C.  p.  150. 
San  Xavier  Mine,  D.  C.  p.  133. 
Schedda  o.  Sawyer,  4  McL.  181,  p.  179. 
Schulenberg  v.  Harriman,  21  Wall.  62, 

p.  69. 
Searle  Lode,  D.  C.  pp.  227,  248. 
Secretary  v.  McGarrahan,  9  Wall.  298, 

pp.  138,  374. 
Secretary  of  Interior,  Decisions  of — 

May  20th,  1870,  p.  74. 

Oct.  28th,  1870,  p.  186. 

April,  1871,  p.  203. 

Aug.  4th,  1871,  p.  9. 

Dec.  25th,  1871,  p.  167,  Feb.  12th, 
1872,  p.  331. 

April  19th,  1872,  p.  370. 

July  10th,  1872,  p.  334. 

Dec.  11th,  1872,  p.  198. 

Feb.  27th,  1873,  p.  250. 

April  28th,  1873,  pp.  64,  69. 

Julv  19th,  1873,  p.  367. 

Nov.  6th,  1873,  pp.  64,  150. 

Nov.  12th,  1873,  pp.  162,  165. 

Jan.  2d,  1875,  p.  96. 

March  22d,  1875,  pp.  159,  172,  205. 

April  1st,  1875,  pp.  149,  154,  168, 
223. 

July  28th,  1875,  p.  227. 

March  24th,  1876,  p.  336. 

May  20th,  1876,  p.  67. 

July  16th,  1876,  p.  125. 

July  29th,  1876,  pp.  97,  98. 

Feb.  17th,  1877,  pp.  219,  220. 
Seven  Thirty  and  Hercules  Lodes,  D. 

S.  j,.  249. 
Seymour  r.  Woods,  D.  C.  1).  187. 
Si "•.  in  Thirty  Lode,  In  re,  D.  C.  p.  150. 
Sheets  /•.  Seiden,  'J   Wall.  177,  p.  164. 
Shephy  r.  Cowan,  1  Otto,  330,  p.  374. 
Sheridan  Lode,  in  re,  l>.  S.  p.  190. 
Sherman  v.  Boick,  15  Cal.  656;  :s  Otto, 

209,  pp.  58.  66.  849. 
Silver  0.  Ladd,  7  Wall.  219,  pp.  373,  374. 
Silver  <  tie  I,,„|e,   III  re,   I).  ('.  p.  101. 

Slide  Lode,  In  re,  i>.  0.  pp,  LB.  180. 

Smith  r.  Stewart,  I).  A.  ft  pp.  802,  303. 

Soulard  v.  United  states,  4  Peters,  Oil, 

ji.  55. 


South  Comstock  G.  &  S.  M.  Co.  In  re, 

D.  C.  pp.  102,  306. 
St.  John  v.  Kidd,  26  Cal.  263,  p.  266. 
Stark  v.  Starrs,  6  Wall.  402,  pp.  139, 

149,  179,  372. 
State  v.  Berryman,  8  Nev.  270,  p.  88. 
v.  Gasconade  County  Ct.  33  Mo. 

102,  p.  164. 
v.  Schwerle,  5  Pick.  279,  p.  164. 
State  of  Nev.  &  C.  P.  R.  R.  Co.  of  Cal. 
D.  C.  p.  328. 

STATUTES    CITED,   COMMENTED    ON,    AND 
CONSTRUED. 

Act  of  May  18th,  1796, 1  U.  S.  Stat.  466, 

pp.  48,  50,  259. 
May  10th,  1800,  2  U.  S.  Stat.  73, 

pp.  48,  50. 
April  30th,  1802,  2  TJ.  S.  Stat.  173, 

p.  48. 
March  26th,  1804,  2  TJ.  S.  Stat. 

277,  pp.  48,  51. 
March  2d,  18J5,  2  U.  S.  Stat.  324, 

p.  51. 
April  21st,  1806,  2  U.  S.  Stat.  391, 

p.  51. 
March  3d,  1807,  2  TJ.  S.  Stat.  445, 

pp.  1,  40,  43. 
March  3d,  1807,  2  U.  S.  Stat.  548, 

p.  51. 
April  18th,  1818,  3  IT.  S.  Stat.  429, 

p.  48. 
March  2d,  1819,  3  TJ.  S.  Stat.  489, 

p.  51. 
March  6th,  1820,  3  IT.  S.  Stat.  545, 

pp.  48,  55. 
April  20th,  1822,  3  U.  Stat.  665,  p. 

51. 
June  23d,  1836,  5  TJ.  S.  Stat.  58, 

pp.  49,  55. 
June  23d,  1836,  5  U.  S.  Stat.  59, 

pp.  49,  65. 
Sept.  4th,  1841,  5  U.  S.  Stat.  455, 

pp.  38,  41,  56. 
March  3d,  1845,  5  TJ.  S.  Stat.  789, 

p.  49. 
July  11th,  1846,  9  U.  S.  Stat.  37, 

pp.  37,  40,  44. 
Aug.  6th,  1846,  9  IT.  S.  Stat.  58,  p. 

49. 
March  1st,  1S47,  9  U.  S.  Stat.  146, 

p.  44. 
March  3d,  1847,  9  TJ.  S.  Stat.  181, 

pp.  40,  44. 
March  3d,  1849,  9  U.  S.  Stat.  396, 

p.  41. 
Sept.  9th,  1850,  9  U.  S.  Stat.  452, 

p.  42. 
Sept.  26th,  1850,  9  U.  S.  Stat.  472, 

p.  44. 
March  3d,  1853, 10  U.  S.  Stat.  248, 

pp.  41,  43,  58,  59,  64,  65. 
July  22d,  1854,  10  U.  S.  Stat.  308, 

pp.  49,  52. 
March  3d,  1857, 11  U.  S.  Stat.  186, 

p.  54. 
May  4th,  1858,  11  U.  S.  Stat.  269, 

p.  49. 


TABLE  OF  CASES. 


431 


Act  of  Feb.  14th,  1859, 11 U.  S.  Stat.  383, 

p.  49. 
May  30th,  1862, 12  U.  S.  Stat.  410, 

pp.  43,  04. 
July  1st,  1862,  12  U.  S.  Stat.  489, 

p.  42. 
July  2d,  1S62,  12  U.  S.  Stat.  503, 

p.  43. 
July  17th,  1862,  12  U.  S.  Stat.  597, 

p.  98. 
March  21st,  1864, 13  U.  S.  Stat.  32, 

p.  68. 
April  19th,  1864, 13  U.  S.  Stat.  47, 

pp.  49,  54. 
July  1st,  1864,  13  U.  S.  Stat.  343, 

pp.  40,  45. 
Jau.  30th,  1865,  13  IT.  S.  Stat.  567, 

p.  39. 
March  3d,  1865, 13  U.  S.  Stat.  529, 

pp.  40,  45. 
Jan.  30th,  1865, 13  U.  S.  Stat.  567, 

p.  39. 
Feb.  27th,  1865, 13  U.  S.  Stat.  441, 

p.  41. 
May  5th,  1866,  14  U.  S.  Stat.  43, 

p.  47. 
July  4th,  1866,  14  U.  S.  Stat.  85, 

p.  70. 
July  13th,  1866,  14  U.  S.  Stat.  94, 

p.  42. 
July  23d,  1866,  14  U.  S.  Stat.  218. 

p.  41. 
July  25th,  1866,  14  U.  S.  Stat.  242, 

pp.  41,  47,  289. 
Act  of  July  26th,  1866, 14  U.  S.  Stat.  251. 
Sec.  1,  pp.  2,  78. 
Sec.  2,  pp.  5,  6,  93,  127. 
Sec.  3,  pp.  21,127. 
Sec.  4,  pp.  26,  99,  115. 
Sec.  5,  p.  257. 
Sec.  6,  pp.  33,  181. 
Sec.  7,  p.  353. 
Sec.  8,  p.  289. 
Sec.  9,  p.  259. 
Sec.  10,  p.  299. 
Sec.  11,  p.  310. 
Act  of  1870,  16  U.  S.  Stats.  217. 
Sec.  9,  p.  243. 
Sec.  12,  pp.  228,  229,  236. 
Sec.  13,  pp.  230,  231. 
Sec.  14,  p.  153. 
Sec.  16,  pp.  230,  236. 
Sec.  17,  pp.  259,  289. 
Act  of  May  10th,  1872,  17  U.  S  Stat.  92. 
Sec.  1,  p.  78. 
Sec.  2,  p.  99. 
Sec.  3,  pp.  107,  108. 
Sec.  4,  p.  110. 

Sec.  5,  pp.  116,  117,  122,  123. 
Sec.  6,  pp.  127,  128,  159. 
Sec.  7,  pp.  94,  181,  206,  208. 
Sec.  8,  p.  243. 
Sec.  9,  p.  354. 
Sec.  10,  pp.  38,  230. 
Sec.  11,  pp.  144,  151,  231,  233. 
Sec.  12,  p.  243. 
Sec.  13,  pp.  153,  334. 
Sec.  14,  p.  247. 
Sec.  15,  p.  253. 
Sec.  16,  p.  289. 


Feb.  18th,  1873,  17  U.  S.  Stat.  465,  p.  39. 
March  1st,  1873,  17   U.  S.  Stat.  92,   p. 

115. 
March  3d,  1873,  17  U.  S.  Stat.  607,  pp. 

340-352. 
June  6th,'  1874,  17  U.  S.  Stat.  92,  p.  115. 
Feb.  11th,  1875,  18  U.  S.  Stat.  315,  pp. 

110,  115,  117,  121. 
March  3d,  1875,  18  U.  S.  Stat.  474,  p. 

49. 
March  3d,  1875,  18  U.  S.  Stat.  470,  p. 

209. 
May  5th,  1876,  19  U.  S.  Stat.  52. 
Jan.  12th,  1877,  19  U.  S.  Stat. 
Revised  Statutes  of  the  United  States : 

Sec.  910,  p.  354. 

Sec.  2258,  pp.  38,  57,  47,  48,  302. 

Sec.  2289,  pp.  48,  57,  302. 

Sec.  2318,  p.  38. 

Sec.  2319,  pp.  78,  79. 

Sec.  2320,  pp.  99,  231. 

Sec.  2321,  pp.  93,  94,  97. 

Sec.  2322,  pp.  107,  108. 

Sec.  2323,  pp.  110,  115. 

Sec.  2324,  pp.   110,   115,   116,   119, 
121,  122,  123. 

Sec.  2325,  pp.  79,  93,  127,  159,  161, 
182,  231,  243. 

Sec.  2326,  pp.  180,   181,  206,  207, 
208,  227. 

Sec.  2327,  p.  243. 

Sec.  2328,  p.  353. 

Sec.  2329,  pp.  78,  228. 

Sec.  2330,  pp.  228,  232,  237. 

Sec.  2331,  pp.  119,   229,   230,   237, 
232. 

Sec.  2332,  pp.  230,  239. 

Sec.  2333,  pp.  47,  144, 151,  231,  233. 

Sec.  2334,  pp.  230,  243. 

Sec.  2335,  pp.  94,  153,  362. 

Sec.  2336,  pp.  247,  250. 

Sec.  2337,  p.  253. 

Sec.  2338,  p.  257. 

Sec.  2339,  pp.  258,  259,  267. 

Sec.  2340,  pp.  259,  289. 

Sec.  2341,  p.  299. 

Sec.  2342,  pp.  310,  318. 

Sec.  2343,  p.  353. 

Sec.  2344,  p.  2S9. 

Sec.  2345,  p.  39. 

Sec.  2346,  p.  39. 

Sec.  2347,  p.  340. 

Sec.  2348,  p.  340. 

Sec.  2349,  p.  341. 

Sec.  2350,  p.  341. 

Sec.  2351,  p.  342. 

Sec.  2352,  p.  342. 

Sec.  2386,  p.  304. 

Sec.  2392,  pp.  304,  306. 

Sec.  2406,  p.  243. 

Sec.  910,  p.  354. 
Stephenson  v.  Smith,  7  Mo.  610,  p.  139. 
Stockton  &  V.   R.   R.  Co.  v.  City  of 

Stockton,  41  Cal.  147,  p.  264. 
Stoddard  v.  Charnhers,  2  How.  317,  pp 

63,  179. 
Strawbridge  v.  Curtiss,  3  Cranch,  267 

p.  92. 
Summers  v.  Dickinson,  9  Cal.  554,  p.  64. 
Sutro  Tunnel  Co.  In  re,  D.  A.  C.  p.  291. 


432 


TABLE    OF    CASES. 


Tartar  v.  Spring  Creek  W.  &  M.  Co.  5 

Cal.  397,  p.  282. 
Taylor  v.  Smith,  In  re,  D.  C.  pp.  226. 

258. 
Terry  ».  Megerle,  24  Cal.  624,  p.  66. 
Teschemacher  v.  Thompson,  18  Cal.  11 

p.  134. 
Thomas  v.  Richards,  D.  S.  p.  225. 
Thompson  v.  Lee,  8  Cal.  275,  pp.  265 

266. 
Thome  v.  Moshor,  20  K  J.  Eq.  257,  p. 

164. 
Tieman  v.  Salt  Lake  M.  Co.  D.  S.  p 

200. 
Titcomb  ».  Kirk,  51  Cal.  288,  p.  262. 
Tong  v.  Hall,  D.  S.  p.  335. 
Township  of  Butte,  In  re,  D.  C.  p.  305 
Trafton  v.  Nougues,  U.  S.  C.  C.  p.  210 
Treadway  v.  Wilder,  8  Nev.  92,  p.  309. 
Tremaine  v.  Brydon,  D.  A.  C.  p.  337. 
Turner  v.  Am.  B.  Union,  5  McLean 

344,  p.  38. 
Tvler  v.  "Wilkinson,  4  Mason,  397,  p 

277. 


U. 


Unicorn  Lode,  In  re,  D.  C.  p.  187. 
Union  M.  &  M.  Co.  v.  Dangberg,  2  Sawy. 
450,  p.  270. 
v.  Ferris,    2    Sawy. 
176,  p.  270. 
Union  Water  Co.  v.  Crary,  25  Cal.  504, 

p.  265. 
United  States  v.  Ames,  1  Wood.  &  M. 
76,  p.  272. 
v.  Arredondo,  6  Peters, 

736,  p.  179. 
v.  Castillero,  2  Black.  17, 

p.  44. 
v.  Comr,  5  Wall.  563,  p. 

138. 
v.  Gear,  3  How.  120,  pp. 

43,  271. 
v.  Gratiot,  14  Peters,  526, 

pp.  5,  41,  179. 
v.  Guthrie,  17  How.  284, 

p.  138. 
v.  Hughes,  11  How.  .TO; 
4  Wall.  232,  pp.  179, 
271. 
v.  Parrott,  1  McAllister, 

271,  pp.  42,  43,44. 
v.  R.    R.   Bridge  Co.   6 
McLean,  C17,  p.  38. 
v.  Seaman,  17  How.  230, 

p.  138. 
v.  Stone,  2  Wall.  526,  p. 
179. 


V. 

Vance  v.  Kohlberg,  50  Cal.  346,  p.  374. 
Vansickle  v.  Haines,  7  Nev.  249,  pp. 

269,  271,  272,  274,  285. 
Van  Valkenburg  v.  McCloud,  21  Cal. 

330,  pp.  64,  66. 
Veeder  v.  Guppy,  3  Wis.  520,  p.  66. 
Vespasian  Lode,  In  re,  D.  C.  p.  140. 


W. 

Wadsworth  v.  TUlotson,  15  Conn.  372, 

p.  272. 
Walsh  v.  Boyle,  30  Md.  262,  p.  164. 
Wandering  Boy  Lode,  In  re,  D.  C.  pp. 

146,  165,  191,  192;  Id.  D.  S.  p.  173,  178. 
Wandering  Boy  M.  v.  Highland  Chief 

M.  D.  S.  p.  149. 
War  Eagle  Mine,  In  re,  D.  C.  pp.  103, 

191,  192. 
Washington  Lode,  In  re,  D.  A.  C.  p. 

176. 
Weaver  v.  Conger,  10  Cal.  233,  p.  265. 
v.  Eureka  Lake  Co.   15  Cal. 

271,  pp.  265,  266,  268. 
v.  Fairchild,  50  Cal.  360,  p.  374. 
Webster  Lode,  In  re,  D.  S.  p.  184. 
Weeks  v.  Hull,  19  Conn.  376,  p.  164. 
Wellington  Mine,  In  re,  D.  S,  p.  149. 
Weske  v.  Leet,  D.  A.  S.  p.  150. 
West  v.  Cochran,  17  How.  413,  p.  66. 
White  v.  Cannon,  6  Wall.  443,  p.  179. 
Whitney  v.  Whitney,  14  Mass.  92,  p. 

72. 
Wiggin  v.  Peters,  1  Met.  127,  p.  164. 
Wilcox  v.  Jackson,  13  Pet.  498,  pp.  38 

139,  179. 
Wilcoxon  v.  McGhee,  12  HI.  381,  pp 

272,  274. 
Wilkinson  v.  Gaston,  9  Q.  B.  141,  p 

164. 
Wiseman  v.  McNulty,  25  Cal.  230,  p 

266. 
Wood  v.  Hyde,  D.  C.  p.  220. 
Woolman  v.  Garringer,  1  Mont.  535 

pp.  283,  284. 
Wvomiug  Mine,  In  re,  D.  A.  A.  G.  p 

148. 

Y. 

Yosemite  Mine  N.  E.  Ex.  In  re,  D.  A. 
C.  p.  142. 


Zella  Lode,  In  re,  D.  A.  C.  pp.  151, 188, 
367. 


INDEX. 


[Note. — The  reference  in  this  Index  is  to  the  page  of  the  volume.] 


A. 

Abandonment— of  adverse  claims,  221. 

of  surface  ground,  222,  252. 
Act  of  1866 — the  repealed  sections,  1. 

section  1 — license  without  title,  2. 

duties  of  registers  and  receivers,  5. 

title  and  patent — the  second  section,  5. 

limitation  of  the  right  to  obtain  patents,  6. 

applicants  for  patent,  6. 

the  evidence,  7. 

citizenship  required,  10. 

entry  and  diagram,  11. 

defects  in  the  instructions,  13. 

the  application,  14. 

publication  of  the  notice,  16. 

the  duties  of  claimants,  registers,  and  receivers,  17. 

Surveyor-General's  duty,  19. 

what  a  patent  conveyed,  19. 

diagram,  notice,  survey,  and  patent,  20. 

notice,  21. 

survey,  22. 

posting  the  notice  of  application  to  make  the  entry,  23. 

effects  of  irregularities — notice  of  application — requisites,  24. 

fees  of  surveyors,  25. 

size  of  locations — adjustment  of  surveys,  26. 

duties  of  deputy  surveyors,  26. 

following  the  vein  to  any  depth,  27. 

mode  of  survey — quantity  and  restriction  to  one  claim,  28. 

deviation  from  rectangular  form  of  survey,  29. 

number  of  feet  located,  30. 

adverse  claims  and  contests,  33. 

proceedings  on  adverse  claims,  35. 

miscellaneous,  36. 
Acts  of  Congress — relative  to  mines  previous  to  Act  of  1866,  46. 
Adjustment— of  surveys— Act  of  1866,  26. 
Adverse  occupation — as  against  a  patent,  138. 

W.  C— 28.  [  433  ] 


434  INDEX. 

Adverse  claims — and  contests — Act  of  1866,  33,  35,  182. 

proceedings  in  Conrt,  180,  227. 

adverse  claims,  180. 

adverse  claims  under  Act  of  1866,  182. 

adverse  claims  under  statutes  now  in  force— details  of  procedure,  183. 

who  may  file,  184. 

verification  of  adverse  claim,  185. 

verification  of  adverse  claims  by  agents  of  companies,  186. 

time  of  filing,  187. 

commencing  second  suit — dismissal  of  former  suit,  187. 

what  constitutes  an  adverse  claim,  188. 

necessary  allegations,  189. 

what  adverse  claimant  must  show,  189. 

form  of  adverse  claim,  195. 

prima  facie  adverse  claim,  195-196. 

sufficient  filing,  197. 

adverse  claim  must  be  accompanied  by  certified  survey,  198. 

the  object  of  giving  notice  by  publication,  198. 

jurisdiction  of  the  Land  Office  over  adverse  claims,  200. 

notice  of  suit,  201. 

authority  of  register  to  dismiss,  201. 

proceedings  in  Court — proper  party  to  commence  suit,  202. 

possession  as  equivalent  to  adverse  claim — parties  to  institute  suit,  203. 

what  are  Courts  of  competent  jurisdiction,  205. 

contests  in  Court — jurisdiction,  206. 

jurisdiction  of  State  Courts,  207. 

transfer  of  causes  to  United  States  Courts — jurisdiction  of  mining  causes, 
209. 

cancelation  of  entry  pending  suit,  218. 

stay  of  proceedings,  218. 

tiling  consent  to  judgment,  219. 

laches  in  bringing  suit,  220. 

prosecution  of  suits — reasonable  diligence,  221. 

abandonment  of  portion  of  adverse  claim,  221. 

abandonment  of  surface  ground,  222. 

cross-applications — delay,  223. 

fees  on  filing  adverse  claim,  223. 

amendment  of  adverse  claim,  224. 

evidence  of,  225. 

withdrawal  of  protest  by  cotenant,  225. 

questions  for  adjudication  by  the  Courts,  225. 

papers  to  be  filed,  225. 

negligence,  226. 

caveat  against  issuing  patents,  226. 

public  highways— adverse  claims,  227. 

suit  decided,  227. 

rights  of  foreign  corporations,  227. 
Affidavits— of  citizenship,  97. 

proper  party  to  make,  162. 

verification  of,  183. 

mineral,  311. 

"        on  timber  land,  312. 
Agent— verification  of  adverse  claims  by,  186. 
Agricultural  entry— withdrawal  from,  315. 


INDEX.  435 


Agricultural  patents— excepting  clauses,  47. 

minerals  discovered  after,  148. 

covering  mines  already  worked. 
Agricultural  and  mineral  lands— 310-339. 
Agricultural  land— proof,  332. 

mines  on,  336. 
Alien— application  by,  90. 

soldiers,  98. 

as  grantee,  142. 
Allegations— of  adverse  claim,  189. 
Amendment — of  adverse  claim,  224, 
Annual  expenditure — placer  claims,  118. 

lode  claims,  120. 

tunnel  claims,  115-121. 
Appeals— 354,  359,  360,  367. 
Applicant— identity  of,  140. 
Application— under  A.ct  of  1866,  14. 

by  aliens,  90. 

who  may  make,  140. 

united,  143. 

one  cannot  embrace  several  claims,  144. 

for  several  lodes  and  a  mill  site,  151. 

errors  in,  167-176. 
Appointment— of  surveyors,  242. 

of  deputies,  243. 
Approval — of  survey,  177. 
Assignment — of  patents,  178. 
Association — unincorporated,  143. 
Authority— of  register  to  dismiss  adverse  claims,  201, 
Authority — of  Land  Office  decisions,  370. 


B. 

Borax  deposits— 80. 
Boundaries — and  survey,  122. 

plat  must  show  accurately,  158. 

exterior  to  be  shown  by  survey,  159. 

of  placer  claims — 228. 
Burden  of  proof — character  of  land,  331. 


o. 

Canals  and  Ditches— 257-290. 

See  "Water  Rights. 
Cancelation — of  entry,  pending  suit,  218. 
Caveat— against  issuing  patents,  226. 
Certified  survey— must  accompany  adverse  claim,  198. 
Certificates  -of  naturalization,  97. 

as  to  improvements,  124,  241. 
Cinnabar— and  copper  deposits,  241. 
Citizenship — required,  10. 

and  proof  thereof,  78,  93,  98. 


436  INDEX. 

Citizenship — Continued. 

and  who  is  a  citizen,  91. 

affidavits  of,  97. 

certificates  of  naturalization,  97. 

proof  of  only  required  of  applicants,  177. 
Claims— dimensions  of,  99. 

definition  of,  118. 

through  executor,  142. 

partly  in  one  district  and  partly  in  another,  151. 

adverse,  180-227. 

See  Adverse  Claims. 

not  in  any  mining  district,  375. 
Classification— of  mineral  veins,  82. 

Coal  lands — right  of  entry  and  of  pre-emption — presentation  of  claims — lim- 
itation of  entry — conflicting  claims — existing  rights,  340. 

entry  of  coal  lands,  340. 

pre-emption  of  coal  lands,  340. 

when  claims  are  to  be  presented,  341. 

only  one  entry  allowed,  341. 

conflicting  claims,  342. 

existing  rights,  342. 

departmental  regulations  and  instructions,  342. 

restrictions  as  to  purchase,  349. 

school  sections  containing  coal,  349. 

coal  lands  and  town  sites,  350. 

actual  possession  of  coal  mines  upon  railroad  sections,  350. 

coal  lands  in  Minnesota,  Wisconsin,  and  Michigan,  352. 

coal  lands,  sale  and  pre-emption  before  mining  acts,  45. 
Co-claimants— contribution  by,  121. 

Committee,  Congressional — delaying  action  at  request  of,  152. 
Companies— agents — verification  by — adverse  claims,  180. 
Compromises— between  miners  and  settlers,  337. 
Conditions— in  patent,  258,  261,  290. 
Conflicting  claims— coal  lands,  342. 
Conflicting  patents — 145. 
Conflicts— as  to  surface  ground,  248. 

between  mineral  and  town-site  claimants,  306. 

between  mill-site  and  homestead  claimants,  302. 

lode  and  placer  claims,  240. 
Contact  deposits— 81. 
Contests- under  Act  of  1866,  33. 

in  Court,  jurisdiction  and  hearings,  206,  354. 

payment  pending,  370. 
Contribution— by  co-claimants,  121. 
Consent— to  judgment,  219. 
Copper  and  cinnabar  deposits — 241. 
Corporation— entries  by,  148. 

foreign,  application  by,  98. 

and  adverse  claims,  227. 
Cotenant — protest  by— withdrawal,  225. 
.Counting  time— <>f  publication,  164. 
Courses  and  distances-  1  _'.">. 
Court— proceedings  In,  180,  202,  205,  206,  227. 

See    A  1>VI  BSE   I   I.  una, 


INDEX.  437 


Court — Continued. 

U.  S.,  transfers  to,  209. 

of  competent  jurisdiction,  205. 
Criminal  offenses— 376. 
Cross-applications— 223. 
Custody  of  letters— 377. 
Customs  and  regulations— 116. 


r>. 

Definitions— 78-89. 

of  claim,  118. 
Defects — in  published  notice,  167. 

in  instructions,  Act  of  1866,  13. 
Delay— in  adverse  claim,  223. 

Delaying  action — at  request  of  Congressional  Committee,  152. 
Deposits— valuable,  79. 

of  borax,  80. 
Deraigning  title— 140. 
Description — in  patent,  errors  in,  146. 

in  notice,  placer  claims,  231. 
Deviation — from  rectangular  form  of  survey,  29. 
Diagram— entry,  etc.— Act  of  1866,  11,  20. 
Diligence — work  on  tunnel,  113. 

suits  on  adverse  claims,  220-221. 

adverse  claims,  223. 
Dimensions — of  placer  claims,  228-241. 

of  claims  and  locations  upon  veins  or  lodes,  99-106. 

length  and  width  of  lode  claims,  99. 

veins  or  lodes  of  quartz  or  other  rock  in  place,  100. 

locations  previous  to  the  mining  acts  of  Congress — limitations  and  size,  101. 

width  of  lode  claims— rights  granted  by  the  patent,  102. 

survey  must  conform  to  the  patent,  103. 

manner  of  locating  claims  on  veins  or  lodes  subsequently  to  May  10th, 
1872,  103. 

several  locations  may  be  made,  106. 

local  regulations,  106. 
Dismissal — of  suit  on  adverse  claims,  187. 

of  adverse  claims  by  register,  201. 
Ditches — and  eminent  domain,  262. 

in  railroad  grants,  261. 

and  canals,  258. 

on  public  lands,  287. 
Ditch-owners — and  miners,  261. 
Diversion— of  water  on  patented  lands,  270. 

Discrepancies — between  final  survey,  patent,  and  original  application  and 
published  notice,  167. 

between  published  notice  and  diagram  filed,  169. 

"       published  notice,  diagram,  and  posted  notice,  170. 
"       final  survey  and  patent  and  application,  171. 
"       survey  and  diagram  filed,  173. 
"       survey  and  notice,  matter  of  description,  173. 
Drainage— 257-290. 


438  INDEX. 

Duties — of  registers  and  receivers,  5. 

of  Surveyor-General— Act  of  1866,  19,  242. 
of  proceedings  for  patent,  132. 
See  Patent. 


E. 

Easements — 257-290. 

Eminent  domain — for  ditch  companies'  use,  262. 

Entries— of  mineral  lands  by  settlers  and  corporations, 

pending  suit,  218. 

of  coal  lands,  MO. 

of  placer  claims,  228-241. 
Entry — and  diagram — Act  of  1866,  11. 

of  coal  lands,  340-352. 
Errors — in  description  in  patent,  146. 

in  survey,  etc.,  167-175. 

and  defects  in  patent  and  application,  167-176. 
Eruptive  masses — 81. 
Evidence— 359,  360,  367. 

of  ownership,  140. 

parol,  to  aid  location  notice,  158 

of  adverse  claim,  225. 

of  possession  of  placer  claims,  230. 

under  Act  of  1866,  7. 
Exceptions— 359,  360,  367. 

Excepting  clauses — in  placer  and  agricultural  patents,  47. 
Exceptions — and  reservations  of  minerals  in  grants  by  the  Government,  38. 

See  Reservations. 
Executor— claim  through  an,  142. 
Exemplified  copies— of  patents,  178. 
Existing  rights — 353. 
Expenditures — upon  tunnels,  113,  115,  121. 

and  improvements,  116. 

annual  placer  claims,  118. 
"       lode  "       120. 

relocated  mines,  121. 
Exploration— and  purchase  of  valuable  mineral  deposits,  and  the  occupation 
and  purchase  of  mineral  lands — citizenship  and  proof  thereof,  78. 

riglit  to  purchase,  78. 

valuable  deposits,  79. 

the  general  rule  stated,  80. 

borax  deposits,  80. 

mineral  deposits,  si. 

what  is  a  mineral  vein  ?  82. 

mineral  veins,  elassilications,  82. 

erupt  ive  musses,  81. 

ronliiel   deposits,  HI. 

impregnations,  hi. 
fahlbands,  81. 
Btockwerke,  81. 
gasii  reins,  82. 
segregated  veins,  82. 


INDEX.  439 


Exploration—  Continued. 

fissure  veins,  83. 

rock  in  place,  86. 

lode,  87. 

vein,  87. 

quartz  ledge,  87. 

spur,  87. 

feeder,  87. 

float  ore,  87. 

silver-bearing  ore,  88. 

tailings,  88. 

who  may  acquire  patents,  89. 

application  by  aliens,  90. 

citizenship,  91. 

proof  of  citizenship,  93. 

affidavit  of  citizenship,  97. 

foreign  corporation,  98. 

restriction  as  to  proof,  98. 
Exploration  and  purchase — of  valuable  deposits,  78. 
Extension — of  time,  119. 
Exterior  boundaries— to  be  shown  by  survey,  159. 

F. 

Fahlbands— 81. 
Feeder— defined,  87. 
Fees— adverse  claim,  223. 

registers  and  receivers,  308. 
Feet  located-  number  of,  Act  of  1866,  30. 
Filing— adverse  claims,  184. 

adverse  sufficient,  197. 
Fissure  veins— 83. 
Five-acre  lots— 241. 
Fixed  monuments — 125. 
Float  ore— defined,  87. 
Flumes— over  public  lands,  286. 
Folio-wing  the  vein— 27. 
Foreign  corporation — application  by,  98. 

and  adverse  claims,  227. 
Form — of  adverse  claim,  195. 
Form  of  survey — deviation  from  rectangular,  29. 
Fraud — in  pre-emption  entry,  336. 

G. 

Gash  veins— 82. 

Government  title— to  mineral  lands,  procuring,  127-178. 

See  Patent. 
Grants — from  Indians,  45. 


H 


Hearings— and  contests,  329,  354. 
and  publication  of  notice,  329. 


440  INDEX. 

Highways — public  and  adverse  claims.  226. 

Homestead  and  town  sites — homestead  rights  on  non-mineral  lands — town- 
site  entries,  299. 

non-mineral  lands— open  to  homesteads,  299. 

pre-emption  of  homesteads  on  agricultural  lands  formerly  designated  as 
mineral,  300. 

homestead  entries  including  mineral  deposits,  301. 

rights  of  pre-emptioners  and  homestead  claimants,  302. 

conflicts  between  homestead  and  mill-site  claimants,  303. 

title  to  town  lots  subject  to  mineral  rights,  303. 

conflicts  between  mineral  and  town-site  claimants,  306. 

town  sites  and  coal  lands,  350. 


I. 

Identity— of  applicant,  140. 

of  lodes,  249. 
Illegal  location — invalidates  subsequent  proceedings,  150. 
Illinois  lead  case — 43. 
Impeachment— of  patent,  134. 
Implied  license — 44. 
Impregnations— 81. 
Improvements— and  expenditures  upon  lode,  116-241. 

certificates  as  to,  124. 

of  mill  sites,  255. 
Indians — grants  from,  45. 
Inspection — of  mine,  374. 
Interference— of  claims,  250. 
Intersection  of  veins — 247. 

conflicts  as  to  surface  ground,  248. 

identity  of  lodes,  249. 

interference  of  claims,  250. 

abandonment  of  surface  ground,  252. 
Irregularities— effect  of,  24. 


J. 

Judgment — consent,  219. 

Jurisdiction— of  Land  Oflice  over  adverse  claims,  200. 

Courts  of  competent — adverse  claims,  205. 

of  State  Courts,  207,  209. 

of  United  States  Courts,  209. 

transfer  to  United  States  Courts,  209. 


Laches— in  bringing  suit,  220-223. 
Land  Office— Jurisdiction  over  adverse  claims,  200. 
practice,  864. 

decisions,  authority  of,  370. 


INDEX.  441 

Lead  case — Illinois,  43. 

mines,  sale  of,  44. 
Length  and  -width — of  lode   laims,  99. 
Letters — custody  of,  377. 
License — without  title,  2. 

implied,  44. 
Liens— 241. 

Local  legislatures— authority  to  make  laws  to  govern  the  mines,  257. 
Local  regulations — 106. 
Local  water  rights— 260. 
Locations— tunnel,  110,  112 

patenting,  112. 

and  survey  boundaries,  122. 

by  a  minor,  150. 

size  of,  26,  30,  99,  100,  101, 

previous  to  mining  acts,  99,  100. 

mode  of  making,  after  May  10th,  1872. 

several,  103. 

priority  of,  109. 

illegal,  invalidates  subsequent  proceedings,  150. 

notice  of  its  efficiency,  154. 

notice,  parol  evidence  admissible  to  aid,  158. 

of  mill  sites,  253,  254. 
Locator's  right — of  possession  and  enjoyment  of  surface  ground  and  lode, 
107,  109. 

grantee  of  several  may  obtain  patent  for  whole  tract,  144. 

right  of  possession  and  enjoyment,  107. . 

status  of  lode  claims  located  prior  to  May  10th,  1872,  108. 

patents  for  veins  or  lodes  previously  issued,  108. 

priority  of  location,  109. 
Lode  claims — annual  expenditure,  120. 

procuring  patent,  127-178. 
See  Patent. 

length  and  width  of,  99, 102. 

locations  upon,  99,  100. 
See  Location. 

possession  and  enjoyment  of,  101. 

status  of,  before  May  10th,  1872,  108. 

patents  for,  108. 

identity  of,  249. 

and  placer  claims,  conflicts,  240. 


M. 

Machinery— removal  of,  317. 

Masses — eruptive,  81. 

Mill-site — and  several  lodes,  application  for,  151. 

patents  for  non-mineral  lands,  253. 

location  of  mill-sites,  253. 

procuring  patent,  254. 

mill-site  must  be  non-mineral  in  character,  255. 

improvements,  255. 

mill-sites  and  railroad  grants,  255. 


442  INDEX. 

Mineral  lands — the  first  mining  act,  1-37. ' 
See  Act  op  1866. 
reservations  and  exceptions  of  mineral  lands  in  grants  by  the  Govern- 
ment, 38-77. 
See  Reservations  and  Exceptions. 
right  of  exploration  and  purchase  of  valuable  mineral  deposits  and  the 
occupation    and    purchase  of    mineral    lands — citizenship    and    proof 
thereof,  78-98. 
See  Exploration  and  Purchase,  Citizenship. 
what  is  mineral  land,  329. 
dimensions  of  claims  and  locations  upon  veins  or  lodes,  99-106. 

See  Dimensions  of  Claims,  Locations. 
locator's  right  of  possession  and  enjoyment  of  the  surface  ground  and  of 
the  lode,  107-109. 
See  Locator's  Rights  op  Possession,  Etc. 
tunnel  rights,  110-115. 

See  Tunnels. 
regulations  and  customs — expenditures  and  improvements — surveys  and 
boundaries,  116-125. 
See  Regulations,  Expenditures,  Surveys,  and  Boundaries. 
patents  to  mineral  lands — mode  of  procuring  Government  title,  126-179. 

See  Patents. 
adverse  claims,  proceedings  in  Court,  180-227. 

See  Adverse  Claims. 
placer  claims — survey,  entry,  and  patent — dimensions  of  claims — subdi- 
visions of  ten-acre  tracts— evidence  of  possession — mode  of  obtaining 
patent,  228-241. 
See  Placer  Claims. 
public  surveys  over  mineral  lands — duties  of  Surveyor-General — appoint- 
ment of  deputies,  242-246. 
See  Surveys. 
intersection  of  veins,  247-252. 

See  Intersection  of  Veins. 
mill-sites — patents  for  non-mineral  lands,  253-256. 

See  Mill  Sites. 
water  and  other  vested  rights — right  of  way  for  canals  and  ditches — ease- 
ments—drainage— State  and  Territorial  legislation — Sutro  Tunnel  Act, 
257-298. 
See  Water  Rights,  Vested  Rights,  Easements,  Drainage,  Canals 
and  Ditches,  Sutro  Tunnel  Act. 
homesteads  and  town  sites,  299-309. 
See  Homesteads,  Town  Sites. 
segregation  of  mineral  and  agricultural  lands — withdrawal  from  agricul- 
tural entry,  310-339. 
See  Segregation,  Withdrawal  from  Agricultural  Entry. 
coal  lands,  840-362. 

S«c  Coax  Lands.  ' 
miscellaneous  provisions,  353-377. 

See  Poweb  of  President,  Pending  Applications,  Possessory  Ac- 
tions, Land  Office  Practice,  Appeals,  etc.,  Fees  of  Registers 
and  l:i ci.ivi.Ks,  Land  Office  Decisions    Criminal  Offenses. 
Mineral  vein— what  is,  81,  87. 
ClaSSlfical  ions,  82. 
gash  viins,  82. 


INDEX.  443 

Mineral  vein — Continued. 

segregated,  82. 

fissure,  83. 
Miners  and  settlers — compromises,  337. 
Mining  ditch — in  railroad  grant,  2G1. 
Miscellaneous  provisions — power  of  the  President  as  to  appointments,  353. 

pending  applications — existing  rights,  353. 

possessory  action.?  relative  to  mines,  354. 

practice  before  the  Land  Department — hearings,  contests,  and  appeals — 
witnesses  and  testimony,  354. 

appeals,  exceptions,  evidence,  359,  360,  367. 

fees  of  registers  and  receivers,  368. 

payment  pending  contest,  370. 

decisions  of  the  Land  Department — their  authority,  370. 

right  of  inspection  of  mine,  374. 
*    mining  claims  in  river  beds,  374. 

timber  on  mineral  lands — railroad  companies,  375. 

claims  not  within  any  mining  district,  375. 

removal  of  machinery,  376. 

criminal  offenses,  376. 

hearings  and  contests,  354. 

perjury,  376. 

custody  of  letters,  377. 

removal  of  papers,  377. 

warrants  and  scrip,  377. 
Mode  of  survey— Act  of  1866,  28. 
Monuments — fixed,  125. 

N. 

Nature— of  patent,  138. 
Naturalization — certificates  of,  97. 
Neglect — of  co-claimants  to  contribute,  121. 
Negligence — adverse  claims,  225,  226. 
Nevada — school  lands  containing  minerals  in,  67. 
New  trial — as  ground  for  staying  proceedings,  219. 
Newspaper — in  which  to  make  publication  of  notice,  165. 
Notice— Act  of  1866,  20,  21,  24. 

publication  of — Act  of  1866,  16. 

revised  statutes,  161. 

posting,  23. 

of  location — its  sufficiency,  154. 

"  parol  evidence  admissible  to  aid,  158. 

of  publication — newspaper  in  which  to  make,  165. 

published — defects  in,  167. 

of  publication — object  of,  198. 

of  suit  on  adverse  claim,  201. 

description  in — placer  claims,  231. 
Number— of  feet  located— Act  of  1866,  30. 

of  patents,  149. 

o. 

Occupation  and  purchase — of  mineral  lands,  78. 
Ownership— evidence  of,  14q. 


444  INDEX. 


p. 

Papers — to  be  filed — adverse  claims,  225. 

removal  of,  377. 
Parol  evidence — to  aid  location  notice,  158. 
Party — to  commence  suit  on  adverse  claim,  202,  203. 
Patents — for  veins  or  lodes  previously  issued,  108. 

for  tunnels,  110-112. 

for  non-mineral  lands,  253. 

for  mill  sites,  254. 

under  Act  of  1866,  5. 

of  placer  claims,  231,  228-241. 

limitation  of  right  to  obtain,  6. 

applicants  for,  6. 

conditions  in,  258,  261,  290. 

subject  to  vested  rights,  259. 

what  it  conveyed  under  Act  of  1866,  19,  20. 

excepting  clauses,  47. 

who  may  acquire,  89. 

application  by  aliens,  90. 

rights  granted  by,  102. 

and  survey,  103. 

for  placer  claims — excepting  clauses,  47 

annual  expenditure,  118. 
Patents  to  mineral  lands — mode  of  procuring  Government  title,  127-178. 

patents  for  vein  or  lode  claims,  how  obtained,  127. 

details  of  procedure,  128. 

duties  of  registers  and  receivers,  132. 

nature  of  the  patent,  133. 

impeachment  of  patent,  134. 

adverse  possession,  as  against  a  patent,  138. 

what  is  granted,  139. 

who  may  apply,  140. 

evidence  of  ownership,  deraigning  title,  identity  of  applicant,  transfers, 
140. 

claim  through  an  executor — where  an  alien  is  grantee  of  a  claim,  142. 

united  applications — unincorporated  associations,  143. 

several  claims  cannot  be  embraced  in  one  application,  144. 

grantee  of  several  locators  may  obtain  patent  for  the  whole  tract,  144. 

conflicting  patents,  145. 

errors  In  description  In  patent — relinquishment — calls  for  the  relinquish- 
ment, of  Land  inadvertently  patented,  146,  147. 

second  patent — entries  of  mineral  lands  by  settlers  and  corporations,  148. 

minerals  discovered  after  agricultural  patent,  148. 

Betting  aside  patent,,  148. 

number  of  patents,  149. 

protests  against  issuance  of  patents — status  of  protestants,  149. 

an  Illegal  location   invalidates  subsequent,  proceedings,  150. 

local  ion  by  a  minor,  150. 

application   for  several  lodes  and  a  mill  site— claim  partly  in  ono  district 
and  partly  in  another,  151. 

delaying  action  at,  request  of  Congressional  Committees,  152. 
the  affidavit— proper  party  to  mako  it,  152. 


INDEX.  445 

Patents  to  mineral  lands— Continued. 

verification  of  affidavits,  153. 

the  location  notice,  154. 

parol  evidence  to  aid  the  notice,  158. 

plat  must  show  the  boundaries  of  the  claim,  158. 

surveys  to  show  exterior  boundaries,  159. 

specific  surface  ground,  159. 

posting  on  claim  and  proof  thereof,  160. 

publication  of  the  notice,  161. 

time  of  publication,  163. 

counting  the  sixty  days,  164. 

proof  of  publication,  165. 

the  newspaper  in  which  the  notice  is  to  be  published,  165. 

defects  in  the  published  notice,  167. 

discrepancies  between  final  survey  and  patent  and  the  application  and 
published  notice,  167. 

discrepancies  between  the  published  notice  and  the  notice  and  diagram 
filed,  169. 

discrepancies  between  the  published  notice  and  the  diagram  and  posted 
notice,  170. 

discrepancies  between  the  final  survey  and  patent  and  the  application,  171. 

newsurvey,  pending  another  application,  173. 

discrepancies  between  survey  and  diagram,  173. 

discrepancies  between  survey  and  notice,  matter  of  description,  173. 

errors  in  survey,  174,  175. 

when  application  will  be  rejected,  176. 

sworn  statement,  176. 

approval  of  survey — jurisdiction  of  Surveyor-General,  177. 

proof  of  citizenship,  177. 

bona  fide  application  for  patent,  178. 

portion  of  claim,  178. 

exemplified  copies,  178. 

assignment  of  patents,  178. 

refunding  purchase-money,  178. 

caveat  against  issuing  patents,  226. 
Payment — pending  contest,  370. 
Pending  applications— 353. 
Perjury — 376. 

Placer  claims — survey,  entry,  and  patent — dimensions  of  claims — subdivis- 
ions of  ten-acre  tracts — evidence  of  possession — mode  of  obtaining 
patent,  228. 

conformity  of  placer  claims  to  surveys — limits  and  boundaries,  228. 

subdivision  of  ten-acre  tracts — extent  of  placer  locations,  228. 

survey  of  placer  claims — limitations,  229. 

evidence  of  possession — sufficient  to  establish  right  to  patent,  230. 

proceedings  for  patent  for  placer  claims,  231. 

details  of  procedure,  232. 

description  in  the  notice,  232. 

entry  and  survey  of  placer  claims  under  the  Act  of  1866,  233. 

survey  of  placer  claims  under  the  Acts  of  1866,  1870,  235,  236. 

quantity  of  placer  ground  subject  to  location,  237. 

proofs  necessary  to  establish  possessory  rights,  239. 

placer  ground  located  after  May  10th,  1872,  240. 

conflicting  claims — placer  and  lode  claims,  240. 


446 


INDEX. 


Placer  claims— Continued. 

cinnabar  and  copper  deposits,  241. 
publication,  241. 
liens,  241. 

surveyed  lands,  241. 
five-acre  lots,  241. 
certificates  of  improvement,  241. 
Placer  patents— excepting  clauses,  47. 

claims— annual  expenditure,  118. 
Plat  and  field-notes— of  survey  to  show  amount  of  expenditure,  121. 

and  boundaries  of  claim,  158. 
Policy — of  the  Government  in  reserving  mineral  lands,  39. 

See  Reservations. 
Possession— of  placer  claims,  230. 

Possession  and  enjoyment— of  surface  ground  and  lode,  107. 
Possession— as  equivalent  to  an  adverse  claim,  203. 
Possessory— actions,  354. 

water  rights,  259. 

rights — placer  claims,  239. 
Posting  on  claim— proof  of,  160. 

notice,  Act  of  1866,  23. 
Practice — before  Land  Department,  354. 
Pre-emption— of  coal  lands,  340-352. 
President's  right— of  appointment,  353. 
Prima  facie— adverse  claim,  195. 
Prior  appropriation — 275-281. 
Priority— of  location,  109. 
Proceedings— stay  of  pending  suit,  218. 

in  Court,  180-227. 

See  Adverse  Claim. 
Procedure — on  obtaining  patent,  128. 

See  Patent. 
Proof  of  citizenship— 78-98. 

only  required  of  applicants,  177. 

restriction  as  to,  98. 
Proof— of  posting  on  claim,  160. 

of  publication,  165. 

by  adverse  claimant,  189. 

burden  of — character  of  land,  331. 

character  of  land,  331-334. 

of  possessory  rights— placer  claims,  239. 
Protests — against  issuance  of  patents,  149. 

and  advene  claims,  203. 

by  cotenant,  withdrawal,  225. 
Protestants — si  at  us  of,  149. 
Public  highway— and  adverse  claims,  226. 
Publication  of  notice— Act  of  1866,  16. 

A.C1  of  L872,  161. 

time  of,  hi.;. 

counting  time,  164. 

proof  of,  l <;.">. 

newspaper  in  which  to  make,  165. 

<if  noiicr,  object  of,  198. 

placet  claims,  21 1. 


INDEX.  .  447 


Published  notice — defects  in,  167. 
Purchase — of  valuable  deposits,  78. 
Purchase-money— refunding,  178. 


Quantity— and  restrictions  to  one  claim— Act  of  1866,  28. 

of  placer  ground,  237. 
Quartz  ledge— what  is,  87. 
Questions — presented  in  suits  on  adverse  claims,  225. 


R. 

Railroad  grants— reservations  in,  41. 

mineral  lands  in,  75,  337,  375. 

mineral  lands  and  coal  mines,  350. 

mill-sites,  255. 
Rectangular  form  of  survey — deviation  from,  29. 
Refunding  purchase-money— 178. 
Refusal — of  co-claimants  to  contribute,  121. 
Registers  and  receivers — duties— Act  of  1866,  17. 

proceedings  for  patent,  132. 
See  Patent. 

as  agents  for  applicants,  162. 

authority  to  dismiss  adverse  claims,  201. 

fees,  368. 
Regulations— local,  100. 

coal  lands,  312. 
Regulations  and  customs — expenditures  and  improvements,  116. 

definition  of  "claim,"  118. 

annual  expenditure  not  required  on  placer  claims,  118. 

extension  of  time — re-location,  119. 

annual  expenditure  on  lode  claims,  etc.,  120 

work  done  on  a  tunnel,  121. 

neglect  or  refusal  of  claimants  to  contribute,  121. 

relocated  mines,  expenditures,  121. 

amount  of  expenditures  shown  upon  plat  and  field-notes  of  survey,  121. 

location  and  survey,  boundaries,  122. 

improvements,  certificates  as  to,  124. 

fixed  monuments,  courses,  and  distances,  125. 
Relinquishment— 146. 

calls  for,  147. 
Relocations— 119. 

expenditures,  121. 
Removal — of  papers,  377. 
Reservations  and  exceptions — of  mineral  lands  in  Government  grants,  38. 

mineral  lands  reserved,  38. 

mineral  lands  in  certain  States  not  excepted,  39. 

exceptions  from  the  operation  of  the  act,  39. 

certain  grants  not  to  include  mineral  lands,  39. 

the  policy  of  the  Government  in  reserving  or  excepting  mineral  lands,  39. 

reservation  in  railroad  grants,  41. 


448  INDEX. 

Reservations  and  exceptions— Continued. 

the  Government  never  parted  with  the  right  to  the  mines,  42. 

reservation  in  grants  to  the  States,  43. 

the  Illinois  lead  case,  43. 

implied  license,  44. 

the  sale  of  lead  mines,  44. 

sale  and  pre-emption  of  coal  lands,  45. 

grants  from  Indian  tribes  in  America,  45. 

further  acts  of  Congress,  4G. 

excepting  clauses  in  placer  and  agricultural  patents,  47. 

saline  lands,  48. 

school  lands  containing  minerals,  58. 

school  lauds  containing  minerals  in  Nevada,  67. 

mineral  lauds  in  railroad  grants,  75. 
Restrictions — to  one  claim,  Act  of  1866,  28. 

as  to  proof  of  citizenship,  98. 
Rights— granted  by  patent,  102. 

of  possession  and  enjoyment  of  surface  ground  and  lode,  107. 

of  tunnel-owners,  110,  113. 
River  beds — claims  in.  374. 


s. 

Saline  lands,  48. 

School  sections — containing  coal,  349. 
School  lands — containing  minerals,  58,  67. 
Scrip  and  warrants — 377. 
Second  patent— 148. 
Segregated  veins— 82. 

Segregation  of  mineral  and  agricultural  lands — withdrawal  from  agricul- 
tural entry,  310. 

manner  of  setting  apart  mineral  lands  as  agricultural,  310. 

segregation  of  agricultural  from  mineral  lands,  310. 

mineral  affidavits,  311. 

mineral  affidavits  on  timber  land,  312. 

segregation  under  Acts  of  1866  and  1870,  313,  315. 

withdrawal  of  certain  lands  from  agricultural  entry,  315. 

surveyors'  returns,  326. 

their  prima  facie  accuracy,  328. 

hearings  to  determine  the  character  of  land — publication,  329. 

what  is  mineral  land,  329. 

burden  of  proof,  331. 

evidence  as  to  agricultural  character  of  land,  332. 

the  testimony,  333. 

proof  as  to  mineral  character  of  land,  334. 

discovery  of  mines  on  agricultural  lands,  336. 

agricultural  patent  covering  mines  already  worked,  336 

fraud  in  pre-emption  entry.  336. 

compromises  between  miners  and  settlers,  .;:;t. 

attempt  by  railroad  to  disprove  mineral  character  of  lands,  337. 

non-mineral  proof  by  Battlers  on  lands  within  railroad  limits,  338,  339. 
Setting  aside  patent— lis. 
Settlers — entries  of  mineral  lands  by,  14S. 


INDEX.  449 

Settlers—  Continued. 

and  miners,  337. 

non-mineral  proof,  333-339. 
Several  claims — in  one  application,  144. 
Silver-bearing  ore— defined,  88. 
Size— of  locations— Act  of  1866,  26,  99,  100,  101. 
Soldiers — alien,  applications,  98. 
Spur— defined,  87. 
State  Courts— jurisdiction,  207. 

and  Territorial  legislation,  257-290. 
Statement — sworn,  176. 
States — reservations  in  grants  to,  43. 
Stay— of  proceedings,  218,  219. 
Stockwerke— 81. 
Sufficiency — of  location  notice,  154. 
Suits — on  adverse  claims,  187. 

questions  presented,  225. 

laches  in  bringing,  221. 
"       notice  of,  201-202. 

party  to  commence,  202. 

proper  Courts,  205. 

entry  pending,  218. 

stay  of  proceedings,  218. 
Surface  ground — possession  and  enjoyment  of,  107. 

specific,  159. 

conflicts  as  to,  248. 

abandonment  of,  222-252. 
Surveys  over  mineral  lands— surveys  of  mining  claims— duties  of  Surveyor- 
General — appointment  of  deputies,  242. 

appointment  of  surveyors  of  mining  claims  by  Surveyor-General,  242. 

public  surveys  extended  over  mineral  lands,  243. 

description  of  vein  claims  on  surveyed  and  unsurveyed  lands,  243 

appointment  of  deputies,  243. 

charges  for  surveys  and  publications,  244. 

special  instructions  to  deputies,  244. 

authority  of  deputies  outside  the  district,  246. 

plat  and  field-notes  to  show  amount  of  expenditure,  121. 

of  placer  claims,  228-241. 

and  boundaries,  122. 

under  Act  of  1866,  20,  22. 

adjustment  of,  26,  28. 

rectangular  form,  deviation  from,  29. 

conforming  to  patent,  103. 

to  show  exterior  boundaries,  159. 

approval  of  by  Surveyor-General,  177. 

certified,  must  acconrpany  adverse  claim,  198. 
Surveyors'  fees— Act  of  1866,  25. 

returns,  326. 

"        their  pi'irna  facie  accuracy,  328. 
Surveyor-General's  duties— 19,  242. 

jurisdiction  of,  177. 

approval  of  survey  by,  177. 
Suspension — of  proceedings — new  trial  as  ground  of,  219. 
Sutro  Tunnel  Act— 289. 
Sworn  statement — 176. 

W.  C— 29. 


450  INDEX. 

T. 

Tailings— defined,  88. 

Testimony— character  of  land,  331,  332,  333,  334,  354. 

Timber — on  mineral  lands,  375. 

Time— extension  of,  119. 

of  publication,  163. 

"  counting,  1G4. 

of  filing  adverse  claims,  187. 

of  commencing  suit  on  adverse  claims,  202. 
Title— deraigning,  140. 
Title  and  patent— under  Act  of  I860,  5. 
Town  sites— 299-306. 

subject  to  mineral  rights,  303,  306. 
Transfers— 140. 

of  causes  to  United  States  Courts,  209. 
Tunnel  rights— 110,  115. 

locations,  patenting,  112,  113. 

expenditures  upon,  115,  121. 

owners  of — rights  of,  110. 

expenditures  upon,  regarded  as  expenditure  upon  a  lode,  113. 

rights— diligence — expenditure,  115. 


u. 


Unincorporated  associations— 143. 
United  applications— 143. 


Valuable  deposits— exploration  and  purchase  of,  78,  79. 
Vein— following  the,  27. 

mineral,  what  is,  81. 

gusli,  82. 

segregated,  82. 

fissure,  83. 

intersection  of,  247. 
Verification— of  adverse  claims,  185,  186. 
Vested  rights— 257,  290. 

See  WATi.il  liicin  9, 


w. 

Warrants  and  scrip— .".77. 

Water  and  other  vested  rights— right  of  way  for  canals  and  ditches— ease- 
ments— drainage— State  and  Territorial  legislation— patents  subject  to 

-.  ■    ted  rights— Sutro  Tunnel  A.ct,  257. 
State  and  Territorial  legislation  -ease  incuts,  drainage,  etc.,  257. 
condition  -  In  erted  In  the  patent,  258 

I  i  to  use  of  water— right  <>f  way  for  canals,  258. 


INDEX.  451 

Water  and  other  vested  rights— Continued. 

patents  subject  to  vested  water  rights,  259. 

possessory  water  rights  coniirmed,  259. 

local  water  rights  protected,  2G0. 

conditions  as  to  vested  water  rights  inserted  in  patent,  26L 

mining  ditch  in  railroad  grant,  261. 

conflicting  rights  of  ditch-owners  and  miners,  261. 

exercise  of  eminent  domain  for  a  private  ditch  company's  use,  262. 

water  rights  in  California  under  the  Codes,  264. 

existing  water  rights  obtained  by  patent,  how  affected,  266. 

effect  of  the  acts  upon  previous  diversion  of  water  upon  patented  lands. 
270. 

recognition  of  the  doctrine  of  prior  appropriation,  275. 

effect  of  the  statute  upon  prior  appropriation  without  Government  title, 
281. 

construction  of  flumes  over  public  lands,  286. 

rights  of  ditch-owners  on  public  lands,  287. 

Sutro-Tunnel  Act,  289. 

conditions  inserted  in  patents  for  mines  on  Comstock  Lode,  Nevada,  290. 
"Width— of  lode  claims,  99,  102. 
Withdrawal — of  protest  by  cotenant,  225. 

from  agricultural  entry,  310-315. 
Witnesses — 354. 


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